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Petitioner: MUHAMMAD ASLAM VS Respondent: STATEHonorable Justice Nazir Ahmad Bhatti
1996 M L D 779
1996 M L D 779
[Federal Shariat Court]
Before Nazir Ahmad Bhatti, C J
MUHAMMAD ASLAM‑‑‑Appellant
versus
THE STATE‑‑‑Respondent,
Criminal Appeal No.222/I of 1994, decided on 30th October, 1994.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.10‑‑‑Appreciation of evidence‑‑‑No positive evidence was available to show that complainant aged about 70/75 years was subjected to sexual intercourse as alleged by her‑‑‑Injuries detected on medical examination of complainant were suffered on her face, but no injury was found near or around her vagina and report of Chemical Analyst was also in the negative and no injury was found on the body of complainant by investigating Officer when she went to police station to make report‑‑‑Complainant stated that occurrence had taken place at sunrise but she went to police station at about 4'O Clock in the evening which showed that report was made with considerable delay and no explanation was furnished on part of prosecution to justify said delay‑‑‑Person mentioned in the report to whom complainant had narrated the occurrence, was also not produced as a witness during trial‑‑‑Parties were nearest relatives as accused was father‑in‑law of son of complainant lady and son of complainant had submitted an affidavit in Court wherein it was mentioned that some misunderstanding had been developed between their families and that accused had not committed offence for Which he was charged by his mother, the complainant‑‑‑Held, complainant was not subjected to sexual intercourse, but on . account of differences which had developed between son of complainant and daughter of accused who was his father‑in‑law, some altercation could have taken place‑‑ Charge levelled against accused by complainant, having not been proved by any evidence, whatsoever, conviction and sentence of accused recorded by Trial Court, were set aside and he was acquitted of the offence for which he was convicted and sentenced.
Muhammad Nasim for Appellant.
M. Sohail Akhtar, Law Officer, N.‑W.F.P. for the State.
Date of hearing: 30th October, 1994.
JUDGMENT
Complainant Mst. Roshan Jan widow of Hassan Khan aged about 70/75 years had gone to the Hills at sunrise time on 11‑10‑1993 for bringing grass for the cattle. She was busy cutting grass when appellant Muhammad Aslam aged about 50/55 years came there, tied the hands of the complainant with a grass rope, untied her trouser as well as his own and throwing her on the ground committed Zina‑bill‑Jabr with her. The complainant raised alarm but no other person was present around. The complainant went back to the village and narrated the occurrence to one Hanif son of Sharf Ali. At 16‑10 hours she went to Police Station Nara and reported the occurrence which was recorded in the daily diary at Serial No.9. The complainant was referred to the hospital for medical examination. P.W.4 Lady Dr. Sunbal Daud examined the complainant on the same day at 19‑30 hours. The lady doctor found the following injuries on her person of the complainant:‑‑‑
(1) Reddish blue bruise on fore‑arm right side with the skin on top grazed size 1" x 1/2".
(2) Blue bruise below the left eye 1/2" x 1/2".
(3) Scratch mark on right cheek 1" x 1/8" reddish in colour.
(4) Scratch mark on back over the left scapular region 1/2" x 1/8"
The lady doctor also took two high vaginal swabs and sent them for chemical analysis. Upon the receipt of the medical report F.I.R. No.73 was recorded in the said police station on 12‑10‑1993 at 15‑10 hours.
2. After investigation the appellant was sent up for trial before Sessions Judge, Abbottabad who charged him under section 6/10 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which the appellant pleaded not guilty and claimed trial.
3. Seven prosecution witnesses were examined on behalf of the State. The report of the Chemical Examiner Exh. PK showed that no semen was detected on the swabs. The appellant only made a deposition under section 342, Cr.P.C. He neither produced any defence evidence nor made any deposition on oath.
4. After the conclusion of the trial the learned Sessions Judge convicted the appellant under section 10(3) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 4 years, and to suffer 30 stripes. The convict Ws challenged his conviction and sentence by the appeal in hand.
5. I have heard learned counsel for the parties at length and have also very carefully perused the entire record of the case.
6. There was no positive evidence that the complainant was subjected to sexual intercourse. The injuries detected on medical examination were suffered of the left eye, fore‑arm right side, right cheek and left scapular region but there as found no injury near or around the vagina of the complainant. The report of the Chemical Analyst was also in the negative. It is, however, interesting to note that no injury was noticed on the body of the complainant by the Investigating Officer when she went to the police station to make the report. It had come in evidence that the appellant was the father‑in‑law of a son of the complainant and there had developed some differences between the husband and wife. It is also a fact that son of the complainant had submitted an affidavit in the Court on In‑10‑1993 wherein it was mentioned that some misunderstanding had been developed between their families and the appellant had not committed the offence for which he was charged by his mother, the complainant. According to the occurrence it had taken place at sun‑rise time and she had returned to the village thereafter but she went to the police station at 16‑10 hours to make the
report which shows that the report was made with considerable delay and no explanation has been furnished to justify the said delay. The person mentioned in the report, to whom the complainant had narrated the occurrence, was also not produced as a witness during the trial.
7. From the aforesaid circumstances and from the other evidence recorded during the trial I have come to the conclusion that the complainant was not subjected to sexual intercourse but on account of differences which had developed between the son of the complainant and the daughter of the appellant, some altercation may have taken place between the appellant and the complainant. The charge which was levelled against the appellant by the complainant could not be proved by any evidence whatsoever.
8. For the aforesaid reasons this appeal is accepted. The conviction and sentence of the appellant recorded on 13‑9‑1994 by the learned Sessions Judge, Abbottabad are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. Fit for reporting.
H.B.T./M‑2209/FSC Appeal accepted.