' MUHAMMAD KHIYAR, J.--- This appeal by Muhammad Khalil is directed against the judgment, dated 4-10-1994 of the learned Sessions Judge,' Buner at Daggar whereby he was convicted under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years' R.I. Five stripes and fine of Rs,500.
' The facts succinctly stated are that on the complaint of Mst. Rabia, Ahmad Saeed Khan, In charge Police Post Pacha Kalay recorded the report in the shape of Murasila Exh.P.W.7/1 and sent it to Police Station Daggar for registration of the case, under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 7-12-1993 against Muhammad Khalil. What she disclosed in the complaint was that she alongwith her parents were living as tenants in the house of Muhammad Khalil who was on visiting terms with them. She developed illicit relations and shared bed with him allowing him to commit sexual intercourse which resulted in her pregnancy. The delay in reporting the matter was stated to be her shyness and ignorance of law. After registration of the case Ahmed Saeed Khan found Mst. Rabia was consenting party. He, therefore, arrested her as an accused along with Muhammad Khalil and got them examined medically. On the conclusion of investigation case file was handed over to S.H.O. Police Station Daggar for submission of challan to Court.
3. At the commencement of trial accused were charged for offence punishable under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter referred to as the Ordinance). The charge was denied by them.
4. To prove the charge against the accused prosecution produced seven P.Ws. Palas Khan (P.W.1) is the father of Mst. Rabia while Mst. Bakht Sardara (P.W.2) is her mother. The testimony furnished by them is that they were residing as tenants in the house of Muhammad Khalil. They were ejected from the house three months before the report of occurrence was made to the police. They started living in the house of one Haji Kharay. There the wife of Haji Kharay told Mst. Bakht Sardara mother of Rabia that she was of bad character and so they should vacate the house. Mst. Bakht Sardara reprimanded her daughter who then disclosed that Muhammad Khalil during the period of occupation of his house committed Zina-bil-Jabr with her at pistol point, and despite the efforts for rapprochement Khalil and his parents declined to accept the hand of Rabia. Lady Doctor Noor Jehan (P.W.3) proved her report Exh.P.W.3/1. Lady Doctor Gul Naz (P.W.4) proved Exh.P.W.4/1 certifying delivery of a baby by Rabia. Dr. Fazal Wahab (P.W.5) examined Khalil and found him fit for sexual intercourse. Zahoor Muhammad, Constable (P.W.6) was handed over a sealed phial containing swa bs taken into possession vide Memo. Exh.P.W.6/1. He had also taken the Murasila to Police Station Dagger for registration of the case. Ahmad Saeed Khan, S.-I. (P.W.7) recorded the report of Mst. Rabia, and impleaded her as an accused with Muhammad Khalil.
5. After the evidence of prosecution was closed, the accused were examined under section 342.
Cr.P.C.
6. Mst. Rabia in her statement under section 342, Cr.P.C. When asked about illicit relationship with Muhammad Khalil and of her pregnancy and about birth of a male baby replied as under:-- "The allegations are incorrect. As a-matter of fact, Muhammad Khalil co-accused who was our landlord was on visiting terms with us. One day in the absence of my parents he came to our house and committed Zina-bil-Jabr with me. Thereafter, he promised to marry me and on this pretext he has been sharing bed with me on different occasions as a result I became pregnant and ultimately a male baby was born to me in the hospital. After conceiving pregnancy when my mother came to know, I narrated the whole story to her, whereupon my parents approached the family of accused Muhammad Khalil who refused to accept my hand, therefore, I went to the police station and lodged the report but due to influence of the co-accused I was dubbed as accused."
' She further stated that Muhammad Khalil committed Zina-bil-Jabr with her with the promise to marry her but subsequently resiled and defrauded her. She neither appeared as witness nor produced any evidence in defence.
7. Muhammad Khalil in his statement under section 342, Cr.P.C. Deposed that he was minor and did not commit any offence of Zina. He admitted that the parents of Mst. Rabia were residing in the house of his father during the day of occurrence against whom the village people made complaint.
They were ejected from the house and started living in another house of Kharay with whom, they have political differences. He also did not appear as his own witness saying that provision of section 340(2), Cr.P.C. Are not applicable to that part of the country, where he resides. No evidence in defence was produced.
8. The trial Court did not accept the plea of Mst. Rabia regarding Zinabil-Jabr. The Court opined that her pregnancy coupled with delayed report proved that she was a consenting party.
Muhammad Khalil was held responsible for rape with Mst. Rabia on the basis of statement of Mst.
Rabia and in view of the fact that she was residing in his house and he was capable of performing sexual intercourse. Muhammad Khalil was, therefore, convicted under section 7 of the Ordinance and sentenced to three years' R.I., five stripes and fine of Rs,500 Mst. Rabia was convicted under section 10 of the Ordinance and sentenced to the same terms with benefit of section 382-B, Cr.P.C.
9. Muhammad Khalil has preferred this appeal challenging his conviction and sentence while Mst.
Rabia has filed no appeal. She was, however, released on bail by this Court. Muhammad Aslam Khaki, Advocate agreed to represent her and, argue the case.
10. Mr. Muhammad Munir Khan, Advocate for the appellant contended that since no allegation of Zina-bil-Jabr were made by Mst. Rabia in the F.I.R. And there being no eye-witness of actual commission of Zina solitary statement of Mst. Rabia under section 342, Cr.P.C. Cannot be made basis for conviction of the appellant. He further contended that exculpatory statement of Mst.
Rabia cannot be taken into consideration against co-accused Muhammad Khalil without corroboration by independent evidence. It was argued that Mst. Rabia is a woman of easy virtue whose solitary statement is not sufficient for conviction of Muhammad Khalil. Reliance was placed on the following case-law:-- ' PLD 1985 FSC 120, PLD 1986 FSC 268, 1995 SCM R 1403, 1996 SCM R 1897.
' Dr. Muhammad Aslam Khaki, Advocate representing Mst. Rabia argued that in view of disadvantageous position of Mst. Rabia and her parents she might have been subjected to Zina- bil-Jabr, for the first time and subsequently consented to sexual intercourse.
11. Mr. Naveed Akhtar, advocate for the State supported the impugned judgment.
12. We have heard the learned counsel for the parties at some length and have carefully perused the evidence. We would like to point out here that the issues for consideration of Full Bench whether Mst. Rabia could be transposed as an accused, whether any violation of Article 13 of the Constitution has occurred are not being discussed in this judgment for insufficient legal assistance by the counsel for the parties and the juris consults and leave the same undecided for consideration at some other proper occasion.
13. As far as the case in hand is concerned, there is ample evidence to show that Mst. Rabia with her parents was living as tenant in the house of Muhammad Khalil. She charged him for committing Zina with her only when pregnancy became visible. Mst. Rabia in the report to the police charged Muhammad Khalil for Zina with consent. Her statement as an accused under section 342, Cr.P.C. That Muhammad Khalil committed Zina-bil-Jabr cannot be considered as an evidence against the co-accused being an exculpatory statement finding no corroboration on record. This statement is in contradistinction to the first report made to the police wherein she admitted having committed Zina with consent. She never complained of any threat by accused Khalil to anybody nor even to the parents. There is nothing on record to suggest that report to the police was incorrect. Only inference which can be drawn is that when Mst. Rabia and her parents were residing in the house of Khalil accused as tenants he must have visited the house in the absence of her parents and under the promise of marriage they both must have been committing Zina with consent. The statement of Mst. Rabia that she was subjected to Zina-bil-Jabr seems to be an afterthought plea. If it was so she should not have waited till pregnancy was noticed, to make the report. The contention that she being tenant was in disadvantageous position is devoid of force. We ourselves have noticed her as very clever girl, unlikely to be threatened for Zina-bil-Jabr.
The argument that Khalil was charged due to political rivalries and at the behest of his opponent in order to defame him is also not convincing. The bare assertion of political rivalries with no explanation is not sufficient to accept the defence version of false charge against Khalil. The pregnancy of Mst. Rabia is sufficient proof of the fact that he committed Zina. The question is whether she should be believed that Khalil committed Zina-bilJabr with her or somebody else has done the mischief. The defence while cross-examining the prosecution witnesses has no doubt tried to show that Mst. Rabia is a girl of easy virtue and she must have been subjected to Zina by somebody else or by the son of Haji Kharay in whose house they are now residing, but there is no evidence worth the name that she is a girl of easy virtue. It appears that both Khalil and Rabia have been committing sexual intercourse with consent and under the promise of marriage by Khalil. But how a landlord's son could marry a tenant's daughter. He could only satisfy his lust and sexual hunger, pleading subsequently that he was minor incapable of performing sexual intercourse. This is a peculiar case to which case-law cited by the learned counsel for the appellant is not applicable. Every criminal case has its own facts and has to be decided in view of the facts involved. In Muhammad Sadiq v. The State 1995 SCM R 1403 and Muhammad Yaqoob v. The State 1996 SCM R 1897 rule laid down is that when a victim is proved to be a woman of easy virtue, her credibility is lost and no reliance can be placed on her testimony. In the case of Mst. Zubeda Begum v. The State PLD 1986 FSC 268 prosecutrix was proved to be a woman of bad repute and doctor opined .Her as habitual to sexual intercourse. Mst. Safia Bibi v. The State PLD 1985 FSC 120 is a case in which the trial Court on the evidence of pregnancy and self-exculpatory statement of the victim convicted her under section 10(2) of the Ordinance and sentenced to 3 year's R.I. Whipping numbering 15 stripes and a fine of Rs,1,000 in default of payment to 6 months' R.I. The male accused was, however, acquitted. Since this case received considerable publicity in national and international Press, Federal Shariat Court in exercise of its revisional jurisdiction issued notice to the.
State as to why judgment be not set aside and thereafter appeal was also filed on behalf of Mst.
Safia Bibi. On hearing the counsel for the parties and others as amicus curiae and after perusing the evidence Federal Shariat Court held:-- "Appellant though victim of Zina-bil-Jabr trial Court not to hold appellant guilty of Zina by consent in absence of any evidence establishing her being on intimating terms or having any sentimental attachment for co-accused. Statement of appellant regarding her having been forced to commit adultery or someone having committed sexual intercourse with her under suspicion about her identity to be accepted and pregnancy as evidence without asking for cause of pregnancy is no evidence of culpability."
About evidentiary value of confession it is held that it is to be read as a whole and exculpatory portion has not to be excluded from consideration unless r evidence on record proves that portion to be incorrect. Confession of one accused against co-accused is not sufficient for conviction even in Sharia.
14. In all the reported case referred to above the facts are not identical with the facts of the present case. Nevertheless the rule laid down provides guidelines for decision of cases under the Ordinance. The difficulty we faced in this case is that Mst. Rabia who made report to the police about Zina with consent was made an accused and as such she was examined under section 342, Cr.P.C. In this statement she charged the accused for Zina-bil-Jabr. This exculpatory statement cannot be used against co-accused Khalil but in view of the facts involved in the case we are convinced that the two accused have committed Zina with consent. The parents of Mst. Rabia have deposed that they had been residing as tenants in the house of father of Khalil which they vacated three months before the report to the police, and started living in the house of one Haji Kharay of Bhai Kalay, where on noticing Rabia's pregnancy, wife of Haji Kharay doubted her character and asked them to vacate the house. On enquiry from Rabia she told them that she became pregnant due to Zina with Khalil. Khalil's family was contacted to accept Rabia as wife of Khalil but they refused. The reason for ejectment from the house of Khalil's father could not be other than feeling of disgrace. There is nothing on record to suggest that except Khalil someone else might have committed Zina with Rabia. Suggestions put to Palas Khan (P.W.1) father of Mst. Rabia and Mst.
Bakht Sardara (P.W.2) her mother that Faraz son of Haji Kharay indulged in Zina with Rabia though denied, were preposterous in that medical examination Exh.P.W.3/1 showed full term pregnancy of 36 weeks. Which could be linked only with the period Rabia and her parents living in the house of Khalil's father. Throughout this period of pregnancy Rabia kept silent. She never complained to anybody that she was subjected to Zina-bil-Jabr by Khalil. That shows that she was a consenting party. They both have willfully committed sexual intercourse without being validly married to each other and thus committed Zina liable to Tazir. She was therefore, rightly convicted and sentenced by the trial Court under section 10(2) of the Ordinance. She accepted the sentence and filed no appeal. We took notice of this and not only released her on bail, as the co-convict was on bail, but also requested Dr. Muhammad Aslam Khaki, Advocate to assist us in the matter. His contention that Khalil accused from a landlord class had a dominating position, therefore, Mst. Rabia's statement that she was subjected to Zina-bil-Jabr should be accepted. We are not inclined to accept this hypothetical proposition. However, it seems more plausible that Rabia must have consented to commission of Zina on the promise of marriage by a landlord's son.
15. Regarding the case of Khalil we find that he was convicted and sentenced under section 7 of the Ordinance. This section provides for punishment for Zina or Zina-bil-Jabr where convict is not an adult. The word adult is defined in section 2(a) of the Ordinance as a person who has attained, being a male, the age of 18 years or being a female, the age of 16 years or has attained puberty. Dr. Fazal Wahab (P.W.5) examined him and found him fit for sexual act, and certified vide Exh.P.W.5/1 that he was matured and have attained puberty. If he was 10th class student when his statement under section 342, Cr.P.C. Was recorded, he failed thrice and in that event he should be of the age of 18 years or so when report was made to police. He could be awarded sentence under section 10(2) of the Ordinance but lenient view seems to have been taken by the lower Court. We do not find any justification to interfere in the matter and maintain the sentence, except that of whipping which is set aside as no more legally required after promulgation of Act No,VII of 1996. The benefit of section 382-B, Cr.P.C. Is also extended to him. With this modification his appeal is dismissed. He should be taken into custody to serve out the remaining sentence. Similarly conviction of Mst. Rabia is also maintained, but her sentence of imprisonment is reduced to already undergone. The sentence of whipping is set aside as no more legally required. The sentence of fine is maintained.
She undertakes to deposit the same with the trial Court within 15 days. Thereafter, her bail bonds shall stand discharged. The short order announced on 29-4-1997 is supported by this detailed judgment.