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Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=199...

1996 P Cr. L J 1161

[Federal Shariat Court]

Before Nasir Aslam Zahid and Khalil‑ur‑Rehman Khan, JJ

ABID JAVED alias MITHU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.229/L of 1995, decided on 31st January, 1996.

(a) Offence of Tina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(3)‑‑‑Appreciation of evidence‑‑‑Vaginal swabs of the victim girl were found to be semen‑stained
by the Chemical Examiner, but the report on the swab sent to Serologist for semen grouping was not
produced in Court and the Chemical Examiner's report had lost its evidentiary value‑‑‑Two prosecution
witnesses related to the victim had been given up as unnecessary‑‑‑One eyewitness did not claim to have
seen the actual occurrence‑‑‑Lady doctor had not noticed any mark of violence on the body of the victim
and the injury on the vaginal area, according to her, could or could not be due to sexual intercourse‑‑‐
Victim who was an intelligent girl had fully exonerated the accused, might be due to a compromise
arrived at between the parties, but the benefit of doubt so created was to be extended to the accused and
not to the prosecution‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204 ref.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑Where semen of accused not sent to Serologist for semen grouping,
semen found on vaginal swabs was of no evidentiary value‑‑‑Semen found on the vaginal swabs of the
victim loses its evidentiary value if the semen of the accused is not obtained and got examined and
matched with semen found on vaginal swabs by the Serologist.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204 ref.

Sardar Muhammad Dogar for Appellant.

Malik Muhammad Nusrat Mahal for the State

Date of hearing: 31st January, 1996.

JUDGMENT

KHALIL‑UR‑REHMAN KHAN, J.‑‑‑--Abid Javed alias Mithu son of Muhammad Sadiq aged 21 years
in this appeal challenged the judgment, dated 23rd August, 1995 whereby the learned Additional Sessions
Judge, Sheikhupura, convicted him for offence under section 10(3) of the Offence of Zina (Enforcement
of Hudood) Ordinance, hereinafter referred to as the Ordinance, and sentenced him to 25 years' R.I. and
30 stripes. The benefit of section 382‑B, Cr.P.C. was, however, allowed.

2. The prosecution case as per the F.I.R. Exh.P.D./1 registered on the basis of the statement made by Mst.
Abida Bibi complainant (P.W.4) and recorded by Mushtaq Ahmad, S.I. (P.W.9) is that Mst. Lubna aged 8
years her daughter was learning Holy Qur'an in the house of Master Sadiq father of the accused/appellant.

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On the day of occurrence at about 2‑00 p.m. she alongwith Talib Hussain (P.W.6). Abdul Ghaffar and
Riaz (given up P.Ws.) was sitting in the courtyard of her house and her daughter Mst. Lubna (P. W.8) went
to the house of Master Sadiq for learning the Holy Qur'an, Samera a minor girl came after a short while to
her and told that Abid Javed accused had taken Mst. Lubna to his room where she is crying. So she ran
towards the house of the accused followed by the afore‑named persons and saw the accused committing
Zina‑bil-Jabr with Mst. Lubna. The accused after seeing them ran away. Shalwar of the victim was off and
she was smeared with blood. Mushtaq Ahmad S.I. after recording her statement Exh.P.D. conducted the
usual investigation and challaned the accused.

3. The prosecution at the trial produced nine witnesses. Besides producing formal police witnesses the
prosecution produced Mst. Abida Bibi (P.W.4) the mother of the victim, Talib Hussain (P.W.6) first cousin
of the father of the victim while Mst. Lubna the victim appeared as P.W.R. Dr. Basharat Julian (P.W.3)
who had examined Mst. Lubna the victim proved the medico‑legal report Exh.P.B. The Chemical
Examiner's report Exh.P.C. is positive as the swabs were found to contain semen. One swab was sent to
Serologist for semen grouping but the said report was, however, not produced. Abdul Rehman (P.W.7) the
father of the victim had produced the blood‑stained Shalwar but the same was not sent to the Chemical
Examiner for the analysis of the blood. Dr. Iftikhar Ahmad (P.W.2) examined the accused/appellant and
after his examination recorded the opinion that nothing was found to suggest that the accused/appellant
was not fit for sexual act. Exh.P.A. is the exact carbon copy of the medico‑legal report. Mst. Abida Bibi
(P.W.4) supported the prosecution version as contained in the F.I.R. Exh.P.D./l. Talib Hussain (P.W.6)
supported the prosecution version in material respects except on the point of seeing the accused
committing Zina‑bil‑Jabr. His statement in this respect reads as under:‑‑

"I alongwith Abida Bibi complainant, Abdul Ghaffar and Riaz P.W. ran towards the house of
Sadiq and saw the Shalwar of Lubna Bibi was off and the bleeding was continued. The accused
Abid Javed after seeing us ran away from the other door of the room within our view."

It is also important to note that Riaz the real paternal‑uncle of the victim and Abdul Ghaffar who is sister's
husband of the paternal‑aunt of the H victim were given up as unnecessary. Mst. Lubna (P.W.8) the victim
was aged ten years at the time of making the statement before the Court and was about eight years at the
time of occurrence. She was examined by the Court after receiving full satisfaction that she is a competent
witness. Mst. Lubna Bibi the alleged victim stated that about one and a half years ago she went to the
house of her neighbourer, where some one had committed Zina‑bil‑Jabr with her but she could not
identify that accused as at that time he had muffled his face. She was then on the request of the
prosecution declared hostile and was cross‑examined. She in cross‑examination admitted that she has
been learning the Holy Qur'an in the house of the accused present in Court from the mother of the
accused. She refuted the suggestion as incorrect that accused/appellant had committed Zina-bil‑Jabr with
her. She also refuted the suggestion as incorrect that his parents had effected a compromise with the
accused and that she is making a false statement to save the accused. She also refuted the suggestion as
incorrect that she had been directed by her parents to make statement in favour of the defence. From the
statement of Mst. Lubna Bibi it is apparent that she is quite an intelligent girl and she understood what she
was deposing and as such there is nothing to come to the view that she due to tender age was not capable
to give rational answers and was not a competent witness. The learned trial Court after asking few
questions of which rational answers were given by Mst. Lubna Bibi rightly declared her a competent
witness. Her statement made before the Court could not be demolished in the cross‑examination. In her
statement Mst. Lubna Bibi P. W completely absolved the accused /appellant. The learned trial Court,
however, discarded the statement by observing that she had exonerated the accused as the complainant is
a poor person and belongs to the poor family while the' accused is very much influential. He by exerting
his influence got, a compromise, therefore, the victim had not deposed against the accused. Learned Judge
further observed that there was sufficient material on record to connect the accused with the occurrence.
Firstly it is the version of the victim which must receive corroboration from independent source. In this
case the victim has exonerated the accused fully and completely. The learned trial Judge is not right in
observing that the victim had admitted indirectly that Zina was committed with her in the house of the
accused. Mst. Lubna Bibi P.W. in fact had stated that she went to the house of her neighbourer where

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some one had committed Zina‑bil‑Jabr with her. The house of Muhammad Sadiq who is the father of the
accused is situated at a distance of one acre from the house of the victim and some houses are situated
in‑between these houses. As such even the scene of the alleged crime is not the same as is mentioned in
the F.I.R. Secondly, the two P.Ws., namely, Mst. Abida Bibi and Talib Hussain were admittedly attracted
to the spot on information given by Sumera a child who was not produced in Court. To this extent the
statement made by Mst. Abida Bibi P.W. was objected to as inadmissible in evidence being hearsay. The
learned trial Court noted the objection and reserved its judgment in this regard but this objection was not
dealt with in the final judgment. If the information which Sumera statedly gave to the mother of the
victim Mst. Abida Bibi P.W. is ruled out of consideration then the version of Mst. Abida Bibi and Talib
Hussain P.Ws. as to going to the house of Muhammad Sadiq and seeing the commission of Zina becomes
improbable. It is also important to note that Talib Hussain P.W. did not claim to have seen the
accused/appellant committing Zina. He only stated that on seeing them the accused ran away from the
other door of the room. Moreover, the lady C doctor in her statement deposed that there was no mark of
violence on the body of the victim and the injury on the vaginal area may or may not be due to the sexual
intercourse. She added that she had not mentioned in medico‑legal report Exh.P.B. specifically that the
victim was subjected to sexual intercourse or not and that she had mentioned therein that according to the
Chemical Examiner's report the swabs were stained with semen which shows that the victim was
subjected to sexual intercourse.

4. Besides the aforesaid features emerging from record the main feature of the case is that the victim of
the alleged crime who is an intelligent girl has exonerated the accused fully. May be it was due to a
compromise arrived at D between the parties but the doubt cast on the prosecution case cannot be
resolved in favour of the prosecution. The benefit of doubt in any case is to be extended to the accused.

5. It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen
grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent
to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen
found on vaginal swabs loses evidentiary value if the semen of the E accused is not obtained and got
examined and matched with semen found on vaginal swabs by the Serologist. In cases of Zina the
prosecution will be well‑ advised to obtain the semen of the accused and have it analysed by the
Serologist for matching with the semen found on the swabs. This Court even earlier in the case of Mst.
Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical
Officers the importance of obtaining material evidence by having matched the semen of the alleged
culprit with the semen found on the vaginal swabs. It was observed, "It is not understandable why the
Medical Officers examining the male for potency should not obtain the specimen of semen of the accused
so that no doubt be left about the identity of the person committing Zina or Zina‑bil‑Jabr. The Police
Officers in their reference to the Medical Officers should also in such cases invariably request the doctor
concerned to take the specimen of semen of the male accused. They should send them for chemical
examination and serology alongwith vaginal swabs and clothes/cloth etc., having seminal stains." Copies
of the judgment were sent to the Secretary interior, Secretary Department of Law, Home Secretaries and
the Inspector‑General, Police of the Provinces but the Investigating Officers have shown no interest in
complying with the said direction and requiring the Medical Officers to obtain specimen of semen of the
accused for comparison with the semen found on the vaginal swabs or the clothes both etc. having
seminal stains. This is high time that these directions are followed in letter and spirit as this important
piece of evidence will remove doubt if any with regard to the identity of the person committing Zina or
Zina‑bil‑Jabr.

6. For the reasons given above we are inclined to hold that in the facts and circumstances of the case the
prosecution has not been able to prove the case beyond, shadow of doubt. We, therefore, acquit the
accused extending benefit of doubt. His conviction and sentences are set aside. He shall be released
forthwith if not required to be detained in any other case. The appeal stands accepted. F Copies of the
judgment be sent to the Health Secretaries, Home Secretaries and Inspector‑General Police of the
Provinces for issuing necessary instructions to the police and prosecution agencies and the Medical
Officers.

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N.H.Q./1040/FSC Appeal accepted.

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