' MUHAMMAD MUNIR KHAN, J.---This appeal by leave of the Court arises from the facts that Muhammad Arshad alias Achhi appellant was tried by the Additional Sessions Judge, Sheikhupura on the charges that he on 8-4-1992, at 11-00 a.m., criminally trespassed into the house of Mst.
Parveen Akhtar situate in Nizampur Chailianwala Chak No,38, District Sheikhupura, and committed Zina-bil-Jabr with her. On the conclusion of the trial, he was convicted under section 452, P.P.C. And sentenced to five years' R.I. And a fine of Rs,5,000 or in default thereof, further R.I. For six months. He was also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to seven years' R.I. And thirty stripes.
On appeal, the Federal Shariat Court, while setting aside his convictions under sections 452, P.P.C.
And 10(3) of the Ordinance has convicted and sentenced him as under:-
(i) Under section 451, P.P.C.---Two years' R.I., a fine of Rs,5,000 or in default six months' R.I.
(ii) Under section 10(2) of the Ordinance---4 years' R.I. And thirty stripes.
' Both the sentences were ordered to run concurrently.
2. Mst. Parveen Akhtar stated before the trial Court that at the eventful time she was sleeping in a room of her house when Muhammad Arshad alias Achhi (appellant) entered the room and committed Zina-bil-Jabr with her. She became unconscious and when she regained senses, she found her relatives and neighbourers there to whom she narrated the occurrence. Lady Doctor Zahida Noor P.W.2 medically examined Mst. Parveen Akhtar on 15-4-1992. She did not find any marks of violence on her body. Few laceration and redness was present in interoitus. The hymen was not freshly torn. Two vaginal swabs were taken and sent to the Chemical Examiner for report.
According to the report of the Chemical Examiner the viginal swabs were not stained with semen.
The lady doctor opined that there was no possibility of recent act of intercourse with Mst. Parveen Akhtar. Mst. Allah Rakhi P.W.5 stated that at the eventful time she was present near a hand-pump when she saw from a hole that Arshad was committing Zina-bil-Jabr with Parveen Akhtar. She raised alarm which attracted the neighboureres. In cross-examination she stated that her statement was recorded by the police four/five days after the occurrence; that Mst. Parveen was raising alarm and resisting; and that she had seen the occurrence from a hole after hearing alarm of Mst. Parveen Akhtar. She was confronted with her statement recorded under section 161, Cr.P.C.
Wherein the raising of alarm by Parveen Akhtar, and the factum of resistance by her, have not been stated. The rest of the evidence was of formal nature.
' In his statement under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised the plea of false implication. He neither produced evidence in defence nor did he make statement on oath in disproof of charges against him.
3. Learned Federal Shariat Court, after discussing the evidence and circumstances of the case has found Mst. Parveen Akhtar a consenting party to the Zina. So, the conviction of the appellant was converted from section 10(3) of the Ordinance to section 10(2) of the Ordinance. As regards conviction under section 452, P.P.C. Since the accused had made no preparation for causing hurt, the Federal Shariat Court was of the view that the accused had trespassed into the house in order to commit an offence punishable with imprisonment covered by section 451, P.P.C. He was convicted and sentenced accordingly.
4. Learned counsel for the appellant has argued that Mst. Parveen Akhtar having been found a Zania by the Federal Shariat Court, no implicit reliance can be placed on her statement; that Mst.
Allah Rakhi P.W. Is not a reliable witness, in that, her statement suffers from material contradictions and dishonest improvements; and that in the circumstances of the case, the possibility cannot be ruled out that the appellant had entered the room of Mst. Parveen Akhtar with her consent and knowledge and as such, he could not have been convicted under section 451, P.P.C. Learned counsel for the State has supported the impugned judgment.
5. We have considered the submissions made by the learned counsel for the parties. On the closer examination of the evidence on record and the circumstances appearing in the case the Federal Shariat Court has come to the conclusion that Mst. Parveen Akhtar was "a consenting party to the enjoyment of sexual intercourse with the appellant". This will show that she has judicially been found a Zania. Now, the question for consideration and determination is as to whether she can be relied upon in convicting the accused/appellant in a Hudood case?
' The ocular evidence may be classified into three categories - firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. The first category furnishes safe basis for conviction without corroboration. Conviction cannot be recorded on testimony of second category of witnesses, though very strong corroboration is available. As regards third category, conviction may be recorded only if such evidence is corroborated by oral or circumstantial evidence coming from distinct sources. In the instant case, Mst. Parveen Akhtar by voluntarily submitting herself to the lust of the appellant has compromised her integrity and seriously damaging her veracity. In the eye of law, she is an accomplice liable to punishment under section 10(2) of the Ordinance. Furthermore, under Article 3 of the Qanun-e-Shahadat (Order 10 of 1984), the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) for a witness and a person shall not be competent to testify if he has been convicted by a Court for a perjury or giving false evidence. Mst. Parveen Akhtar has been found a Zania by the Federal Shariat Court. Her statement that she was subjected to Zina-bil-Jabr has been found false by the Federal Shariat Court, which will show that she has at least been found to have perjured and as such has rendered herself liable to prosecution for the offence of perjury.
6. In view of the afore stated infirmities, we are of the view that Mst. Parveen Akhtar falls within the second category of the ocular oral evidence i,e., "wholly unreliable". So, her statement is not worth the paper upon which it has been written and has to be excluded from consideration.
7. Adverting to the evidence of Mst. Allah Rakhi, we find that she is basically a dishonest witness. No doubt, she has no enmity against the appellant or any motive to involve him falsely in the case, but it is well recognized that want of enmity or interest will not stamp the statement of a witness with truth. What the Court has to see is whether her statement is in consonance with the probabilities, material evidence and inspires confidence in a prudent mind. Mst. Allah Rakhi claims to have seen, from a hole, the appellant committing Zina-bil-Jabr with Mst. Parveen. In her examination-in-chief, she stated that she was standing near a hand pump. The occurrence took place in a room with its door closed. The Federal Shariat Court has come to the conclusion that Mst. Parveen was a consenting party. So, the question of attraction of Mst. Allah Rakhi to the room as a result of alarm raised by victim does not arise. Her claim of seeing the occurrence in that manner does not fit in within the circumstances of the case. Her statement was recorded by the police four/five days after the occurrence. The statement made by her suffers from dishonest improvements, thus implicit reliance cannot be placed on her evidence. There is no additional evidence or circumstances to corroborate her evidence either. Hence, the conviction and sentence of the appellant under section 10(2) of the Ordinance cannot be sustained.
8. Adverting to the conviction of the appellant under section 451, P.P.C., we fmd that in view of the conclusion arrived at by the Federal Shariat Court that Mst. Parveen Akhtar was a consenting party to the sexual intercourse with G the appellant, there was every reason to suppose that she had invited the appellant to her house and his entry in the room cannot be termed as criminal trespass.
Appellant's conviction under section 451, P.P.C., therefore, cannot be maintained as well.
9. The upshot of the above discussion is that there being no satisfactory basis to uphold the convictions and sentences of the appellant, the appeal is H accepted and the appellant is acquitted of the charges. He shall be released forthwith if not required to be detained in any other case.
(Sd.)
Muhammad Munir Khan, J.
(Sd.)
Mir Hazar Khan Khoso, J.
' MAULANA MUHAMMAD TAQI USMANI, J.---I have gone through the proposed judgment of my learned brother Mr. Justice Muhammad Munir Khan in this case. I agree with the ultimate conclusions drawn by him that this appeal should be allowed. However, I feel that some principles discussed in the judgment need more elaboration.
It has been noticed in a number of cases of Zina that the girl levels the charge of rape on the accused, while the Court feels that the element of force in the commission of Zina is not proved on the record. This may result in two different situations:
(i) The girl is not positively held a consenting party to the offence of Zina, but the Court fmds that in the circumstances of the case the possibility of her being a consenting party cannot be ruled out, and extending the benefit of this doubt to the accused, the Court converts his conviction from section 10(3) of the Zina Ordinance (Zina-bil-Jabr liable to Tazir) to 10(2) (Zina liable to Ta'zir).
' In such cases, the girl has not been positively held a consenting party, therefore, her statement can be used against the accused while convicting him under section 10(2).
(ii) The girl is positively held a consenting party to the offence of Zina liable to Tazir. In this case she becomes an accomplice and her statement cannot be used against the accused in the sense that the accused cannot be convicted on the basis of her testimony alone. The reasons for this principle are detailed in the judgment of my learned brother. But the following two points in this context should always be kept in mind:-- Firstly, the Court should never give such a positive finding merely on the basis of surmises and conjectures. This is a very serious fmding against a girl which may entail the following extreme results:
(i) She herself may be proceeded against and convicted under section 10(2) of the Zina Ordinance.
(ii) She may also be punished for perjury.
(iii) This fmding may bring a permanent stigma on her chastity for the rest of her life.
' A girl should never be confronted with such serious results unless there is a positive evidence against her and she has been provided with a proper opportunity to defend herself. These serious results cannot be brought to a girl merely on the basis of some cursorary remarks while evaluating her evidence against an accused.
' For example, it has been noticed in a number of cases that the Court has given a positive finding of her being a consenting party to the act of Zina merely on the ground that no marks of violence have been found on her body, or that she did not raise hue and cry at the time of occurrence. Of course, these facts may create doubt in the element of force having been used in the act of Zina for which the accused can be extended the benefit of doubt, but these facts alone are not sufficient to give a positive finding against the girl o her being a consenting party, and to bring such dirty stigma on her whole life. There may be cases where a girl is not a consenting party, still she cannot properly resist due to fear or having been overpowered or having lost her senses due to a sudden shock of the assault. In such cases marks of violence cannot be found on her person.
How can such a girl be held guilty of Zina merely on the basis of her failure to make noise or to sustain injuries? I such cases no positive finding of her consent should be recorded by the Court.
However, they may extend the benefit of this doubt to the accused and ma convict him under section 10(3). While doing so the statement of the girl may also be used against the accused.
' Secondly, The word `Zania' should not be used against a girl unless she has been tried for that offence properly and has been given full opportunity to defend herself. This is a very serious word which cannot be used for a girl or a woman summarily in the course of argument in some other case without examining the evidence against her and in violation of her right of defence. According to Islamic teachings the word `Zina' or 'Zania' cannot be used against a person unless `Zina liable to Hadd' is proved against him. Even when `Zina liable to Ta'zir' has been established against a person, he cannot be termed as 'Zani' absolutely. Rather, the word `Zina' in this case should always be qualified with the words 'liable to Ta'zir'.
' Coming to the instant case, I am unable to agree with the Federal Shariat Court in giving a positive finding of Zina against Mst. Parveen Akhtar merely on the ground that she could not resist the act of the accused. She has expressly said that she had become senseless, therefore, her statement that she did not try to save herself from the accused does not necessarily mean that she was a consenting party.
' However, this aspect of the case may be taken as a factor creating doubt in the case of the prosecution. Moreover, there are some improvements in the evidence of both Parveen Akhtar and Mst. Allah Rakhi. Their statements suffer from some other infirmities also and are not suppohed by the results of medical examination. The report of the Chemical Examiner is negative and the lady doctor has opined that no fresh act of sexual intercourse has been done with Mst. Parveen Akhtar.
' In these circumstances it is not safe to convict the appellant on the basis of such a defective evidence. Therefore, I allow this appeal, not because Parveen Akhtar is guilty of Zina, but because of the aforesaid doubts in the veracity of her statement.