1. ' MAULANA MUHAMMAD TAQI USMANI, J.---This is a direct appeal against the judgment of the Federal Shariat Court dated 10-12-1998 whereby the order of acquittal of the appellant recorded by the Additional Sessions Judge, Rawalpindi dated 13-6-1998, was reversed and he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to 20 years R.I. With the benefit under section 382(b), Cr.P.C.
2. ' The facts of the case are detailed in the judgments of the Federal Shariat Court and trial Court, and we need not to repeat them.
3. ' Mr. Habibul Wahab-ul-Khairi, the learned counsel for the appellant contended that the learned Federal Shariat Court did not comply with the principles laid down by the Court in the matter of appeal against acquittal. He referred to the cases reported in PLD 1985 SC 11 and in PLD 1999 SC 1063. He contended that the reasons prevailing with the learned trial Court for acquitting the appellant were reasonable or at least reasonably possible and, therefore, the learned Federal Shariat Court was not justified in reversing the order of acquittal.
4. ' Mr. Rab Nawaz Noon, Advocate on the other hand vehemently argued that the reasons given by the trial Court for the acquittal of the appellant were of arbitrary nature. The prosecution has proved its case against the appellant without reasonable doubt by producing three eyewitnesses coupled with the results of the medical examination of the girl and the Report of the Chemical Examiner. The delay of one or two days in lodging the F.I.R. In the cases of Zina-bil-Jabr is not fatal to the case of the prosecution nor can it demolish the whole evidence brought on the record. In this respect he referred to 1990 SCMR 886. Moreover, the plea of false implication in the cases of Zina- bil-Jabr has been held by the superior Courts as unnatural in our society where this false implication dishonours the complainant herself. He referred to PLD 1985 SC 305 and 1985 SCM R 1338 and others whereby this Court has held the same view.
5. We have heard the learned counsels for the parties and perused the record in the light of their submissions. The record shows that the prosecution has produced three eye-witnesses against the appellant. Neither of them has any or any grudge against the appellant, nor any enmity has even been suggested to any of the eye-witnesses. In this background the evidence of the witnesses could not be discarded for the petty reasons given by the trial Court like the argument that the girl should not have gone out of the home for urination at 9.00 p.m. In the winter season in the mountainous area of Murree. The girl, Nighat Bibi has categorically mentioned in her statement that their house did not contain any bath room. Also the reason that the appellant could have committed Zina in Jungle and he did not need to go to his house, is a reason based on whims and conjectures. The reason that the house of the appellant was inhabited by the members of the family is also not sufficient to demolish the whole evidence of the prosecution firstly because according to the site plan the house is a double-storied house and the rooms of other members of the family are separate, and secondly, because there is nothing on the record to show that other members of the family were present at that particular time. The defence plea that the girl herself wanted to marry the appellant and on his denial he was roped in the present case is absurd on the face of it.
6. ' After going through the record we are confident that the judgment of the learned trial Court that no occurrence had taken place is of arbitrary nature. It is true that the statement of the lady doctor in the Court was rather shaky and she could not examine the status of the hymen of the girl. But it does not mean that no occurrence has taken place at all. Three eye-witnesses who have no against the appellant whatsoever are more than sufficient to prove the occurrence. However, in the light of the doubtful nature of the report of the lady doctor about the hymen of the girl the appellant could have been extended the benefit of doubt with regard to the actual act of Zina. It is possible in the circumstances of this case that the appellant could not succeed in the penetration necessary for making the offence of Zina. In this case his offence might not have exceeded an attempt. In view of this possibility the maximum benefit that can be extended to him is that he is convicted and punished for an attempt of Zina and not for the Zina itself. Consequently, we convert the conviction of the appellant from section 10(3) of the Ordinance VII of 1979 into section 18 read with section 10(3) of the same Ordinance and sentence him under that section for 5 years R.I. The benefit under section 382(b) of Cr.P.C. Shall remain. The appeal is disposed of in the above terms.