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GHULAM SARWAR-Petitioner
versus
THE STATE-Respondent
Criminal Petition for Special Leave to Appeal No. 14-R (S) of 1983, decided on
19th December, 1983.
(On appeal from the judgment of the Federal Shariat Court, dated 27-4-1983 in
Criminal Appeal No. 121-L of 1982).
-- Ss. 10(3) & ) 6-Zina-bil-Jabr-Court not fully relying upon statement of eye-
witnesses on ground that eye-witness though confirming occurrence as stated
by prosecution but could not identify culprits at spot-Such eye-witness
deposing that "another eye-witness was crying when two "boys" (accused) were
seen by him coming out of place of occurrence and running away and that two
girls (prosecutrix) also came out of said place crying that they had been raped
by accused persons and further that persons seen by him running away were
culprits named by him"--Held, witness has fully implicated accused and his not
having identified accused personally does not make any difference in
circumstances.
Link
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)
ORDER
"About 5 months ago while I alongwith ,Vst. Inayat Bibi and Mst. Razia P. Ws.
were cleaning the thrashing floor of Subedar Gujjar of village Sultankey when
suddenly at about 2 p. m. the present accused Ghulam Sarwar and his co-
accused Muhammad Tufail (Now proclaimed offender) came to that field and
started molesting us and they also gave a few slaps to Mst. Razia P. W. who is
about 8-9 years of age. Then they caught hold of me and Mst. Inayat Bibi P. W.
who is of my age and dragged us to a nearby Jhugee where Ghulam Sarwar
accused committed zina-bil jabar with me while his co-accused who is absent
today committed zina-bil jabar with Mst. Inayat Bibi P. W. we raised an alarm
which attracted Maluqa and Bashir P. Ws. at the spot on seeing whom the two
accused ran away from the spot. I went to the P. S. Manga Mandi and lodged
the F.1. R. Exh. P. C. It was read over to me and I thumb-marked it in token of
its correctness. I was medically examined."
Besides Mst. Parveen, her two companions Mst. Inayat Bibi and Mst. Razia a
child of about nine years were examiped as eye-witnesses. Maluqa another eye-
witness was also examined as P. W. but the Federal Shariat Court does not seem
to have fully relied upon his statement because, he while confirming that the
occurrence did take place as stated by the prosecutrix had not identified the
culprits at the spot. He, however, deposed that Mst. Razia P. W. was crying
when two `boys' were seen by him coming out of the jhuggi and running away
and that the two girls also came out of the jhuggi crying that they had been
raped by Sarwar and Tufail. And further that the two persons seen by him
running away were the two culprits named by them. This witness accordingly
has fully implicated the petitioner. His not having identified him personally
does not make any difference in the circumstances. Medical Evidence also
confirmed that sexual intercourse had taken place, though no visible marks of
violence were found on the body of the prosecutrix.
The petitioner in his statement under section 342, Cr. P. C. pleaded total denial
and offered the following explanation for what he called false implication
"The witnesses and their fathers work at the brick-kiln of Umer Draz. Exhs. M.
P. A. P. P. P. and Rafiq Khan Chairman of Union Council Khamas also belongs
to P. P. P. and both were opposed in the last election by my uncle Abdul Hamid
and myself. There were two parties in the village Khamas which is included in
Union Council Sultanke and one was headed by my uncle who has been
murdered by the other party in order to win the coming elections but before that
the second party involved me in this false case so that Abdul Hamid may be
safely done away with. The witnesses have falsely implicated at the instance of
the above said persons and even otherwise, they (the girls) have reputation of
being corrupt and habitual to intercourse. Our legs were also broken about two
years ago by the opposite party."
The learned trial Court believing the victims of the crime and also Mst. Razia
convicted the petitioner of Zina-bil-Jabr under sections 10(3) and abduction
under section 16 of the Offence of Zina (Enforcement of Hudood Ordinance,
1979 and awarded him the 10 years' R. I. and 30 stripes and further 5 years' R.
1. and 10 stripes and a fine of Rs. 5,000 under the two provisions, respectively.
On appeal a learned Single Judge of the Federal Shariat Court found that Mst.
Parveen had been `raped' by the petitioner, nevertheless he was acquitted
regarding the charge under section 16 and the conviction was altered from one
under sections 10(3) to 10(2) of the Ordinance, because it was assumed to be a
case of consent, though with respect without any cogent reason.
He then pleaded that the benefit of section 382-B, Cr. P. C. be allowed to the
petitioner. For the same reasons as stated earlier regarding refusal to reduce the
sentence, we do not consider it a fit case for exercise of a power which though
mandatory for the trial Court, is discretionary for this Court.
Learned counsel at the end urged that heavy fine for compensating the
prbsecutrix might be imposed in place of rigorous imprisonment which
according to him would ruin the life of the petitioner, who is a young boy. F We
in the circumstances stated above have no sympathy for him. If the convicts
side so desires out of shame and remorse, provided it is due to penitence and
contrition on the part of the petitioner and not a mere urge to get away on the
strength of being rich, they might beg for pardon from and pay full
compensation to the prosecutrix. This done, the case not being one of Hadd, the
Government might be approached for action that might be considered
appropriate by it in accordance with the law. With these observations this
petition is dismissed.
M. z. M. -- Petition dismissed.