IMPORTANT JUDGEMENT
IN ZINA CASE
' P L D 2012 Federal Shariat Court. 1
IN ZINA CASE
' P L D 2012 Federal Shariat Court. 1
Before Shahzado Shaikh and Rizwan
Ali Dodani. JJ . KHURRAM SHAHZAD---Appellant versus THE ST ATE---Respondent
Criminal Appeal No.262/L of 2006; decided on 27th January. 2012. (a) Offence of
Zina (Enforcemeni of Hudood) Ordinance (VII of 1979)--- --so
10(3)--~A/lti-Terrorism Act (XXVlI of 1997), S.7(c)-Zina-bilJabr--Appreciatioll
0/ evidellce---Victim girl aged three years had pointed towards the accused
presellt ill Trial Court as the cUlprit and stated what he had done to her---
VersiOl1 0/ the minor victim was corroborated by medical evidence---Victim was
./lot cross-examined and 110 objection was raised Dn ally maierial point
despite opportunity having beell given to the de/ellce, which amounted to
acceptance 0/ her slalement---Sole . testimony of the victim girl being
natural, reliable, satisfactory and confu/ellce inspiring, was e/lough for
cOllviction--- Father and 'mother of the victim tf,ough were not
eye-willlessesof the ' OCCUrreIlCe, yet they fladgivell details of llle facts
IIaTtated to them by I,er---Veracity . of botl' these witnesses was II0t
shattered durill, crossexamination alld their statements. had not oilly
corroborated eacll other, but the same were also corroborated by medical
evidellce and report 01 the Chemical Examiner, according to which Ihe Jlllllnol
lwtibl w", . fount! stained . with semen---Complaillanl had /lot .
slraighloway nominated the accused ill the ' F.I.R., ratlrer he had' done .so
after having co,;,e to . know about hill', which showed h(mesty ' of , the PW 2
FSC ALL PAKISTAN LEGAL DECISIONS Vol. LXIV complainant---Accused had failed to
establish his false• implication in the case---Accused had committed a heinous
.offence with a minor girl of three years in a brutal• manner, . which . had
not" only pained, shocked and traumatized her, but had also. left a stigma
on the family and accused deserved nolell;ency---Convietion and sentence of
accused were upheld, in circumstances. . [pp. 9, 10, •11, 12, 13J A, B, E, F,
G, J & K Abdul Mateen v. Sahib Khan and othctrs PLD 2006 SC 538; Nasir
Mahmood and another v. The State and another PLD 2006 Lah. 207; Khadim Hussain
v. The State 2011 PCr.U 1443 and PLD 2005 Lah. 589 ref. (b) Criminal trial---
---Extra-judicial confession---Value---AUhough extra-judicial confession is•
not the basic piece' 0/ evideflce for conviction and sentence, yet it can be
used if properly corroborated by other evidence. [po 10J C (c) Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979)--- ----So
10(3)---Anti-Terrorisll,l Act (XXVII of 1997)~
S.7(c)---Zina-bilJabr--Prosecutlon witnesses,.• examinatioll of---Prosecution
is• not bound to produce all the prosecution wilnesses mentioned in the
calendar of ~itnesses, except thOle who are necessaTy to prove the guilt of
accused. [po 10} D Khadim Hussain v. The State 2011 .PCr.U 1443 ref. (d)
Offence 0/ Zina (Enforcement 0/ Hudood) Ordinance (VII of 1979)--- . . ----So
10(3)---Zina-bil-Jabr--Appreciation of• evidence---DNA . test---
Evidential'yvalue---Utility and evidentiary value of DNA Test is acceptable,
but not in a case falling under the penal. provisions of zina punishable under
Hitdood Laws having their own standard of proof. [po 121 H PLD 2005 Lah. 589
ref. (e) Oifence of Zina (Enforcement of Hudood) Ordinance (VII 0/ i979).•• .
----So 10(3)---Anti-Terrorism Act (XXVIi of
1997),S.7(c)-~-Zina-bilJabr-~-Appreciation of evidenc,--Testimony of
victim--Principle-:--Sole testimony. of the victim is enough for conviction, if
it is truthful and inspires confidence. [po 12J 1 PW 2012 Khurram Shahzad v.
State (Shabzado Shaikh, J) PLD 2005 Lab. 589 ref. Ch. Muhammad Arshad Ramay for
Appellant. Rana' Aftab Ahmad for the Complainant. Nisar Ahmad Virk; D.P.G. for
the State . . Date of hearing: 27th January, 2012. JUDGMENT FSC 3 SHAHZADO
SHAIKH, J.--~This appeal has been moved by appellant Khurram Shahzad ' to
impugn judgment dated 30-8-2006 delivered by lea.rned Judge. Anti-Terrorism
Court Faisalabad,. whereby tie was convicted under ' section 10(3) of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 .and sentenced to
IS years rigorous imprisonment. He was also convicted under section 7(c) of the
Anti- Terrorism Act, 1997 and sentenced to 10 years with a fine of Rs.50,OOO/-.
in default whereof, ' to further undergo simple imprisonment for 3 years. Both
the sentences were ordered to run concurrently with benefit Of section 382-B of
the Code of Criminal Procedure . 2. Brief facts of the case, arising out of
F.I.R No.482/2005 dated 15-12-2005 Exh.PAfl registered under Section 10 of the
Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and 7(3)
AntiTerrorism Act, 1997 at Police StatiOIl Pir Mahal, District Toba Tek Singh,
as narrated .by complainant Muhammad Arshad PW-7 are that he was residing in
Pir Mabal. He was a masson by profession. On 15-12-2005 in the evening at about
5.00 p.m, his daughter namely Kashaf aged about 3 years went out of the house
who did not come back. After a while being anxious he along with his brothers
namely Suhail Ahmad and Muhammad Rashid• tried to search his daughter
Mst.Kashaf. During the search at about 9-00 p.m. when they reached near
Khajjiwala ground of Mohallah Iqbal Town they heard" the screams of a
child. They reached there and saw•th.at his daughter's Shalwar was removed and
there was bleeding from her vagina. Some unknown person had committed
Zina-bil-Jabr with her. He and his. brothers Suhail Ahmad and Muhammad Arshad
brought her to Civil Hospital, Pir Mahal for the treatment. Hence, the case. .
3. The case was duly investigated; the accused was arrested and statements of
the P. W s. were recorded under section 161, Cr. P. C. After investigation,
chalIan was submitted in the . Court against the accused to face the trial. The
learned trial Court framed charge against the accused .- on 27-3-2006 under
section 10(3) of the Offence of 2ina (,Enforcement of Hudood) Ordinance VII of
1979 and 7 of the Anti-Terrorism Act, 1997. The accused did not plead guilty
and claimed trial. . I'UJ .. 4FSC ALL PAKISTAN LEGAL DECISIONS Vol. LXIV 4. The
prosecution in ordeno prove its case produced 11 witnesses at the trial. The
gist of the evidence of prosecution witnesses is as follows:-- (i) P. W.I:
Shahid Altaf ASI is an author of the F.I.R. (ii) P. W.2: Abdul Rashid (Rtd.
Constable) durtng his posting. at Police Station Pir Mohal, was delivered two
sealed parcels and one envelope by Moharrar Shamshad Ali. which he deposited in
the office of Chemical Examiner, Lahore intact. (iii) P.W.3 Ghulam Abbas.A.S,!.
was handed over injury statement of the victim Mst.Kashaf Bibi aged 3 years.
After medical examination the lady doctor handed over to him two sealed
parcels, one sealed . envelope and medical certificate which be denvered to
Muhammad Yar 5.1. who took the. same into 'possession vide recovery memo Ex:PB.
On 21-12-2005 he was accompanying Muhammad Yat S.l. to whom the lady doctor
delivered one sealed envelope for DNA test of MstKashaf which he delivered to
Muhammad Yar, S.1. who took into possession vide re~overy memo Exh.PC. (iv)
P.W.4: Shamshad Ali Moharrar corroborated the statement of P. W.2Constable
Abdul Rashid with regard to seaJed parcels. (v) . P.W.S: MSLKashaf is victim of
the case; PW-6 Mst.Naheed Irbab is mother of the victim and. PW-7 Muhammad Arshad
is father of the victim Mst.Kashaf. They, all the three, supported the
occurrence and corroborated the coritents of the F.LR. (vi) P.W.S: Muhammad
Ilyas is a witness before whom accused Khurram Shehzad allegedO' made a
confession of his guilt. (vii) P. W.9: Dr. Farooq conducted potency test .of
accused Khurram Shehzad and found him fit to perform sexual intercourse. .
(viii) PW-lO: Lady Dr.Yasmeen Muaiam medically examined the victim Mst. Kashaf
aged 3 years and observed as under:-- "External examination: 1. A contused
swelling 2 cm x 3 cm on the upper lip. 2. A contused swelling 2 cm x 1 cm on
the lower I~p. 3. Cutting of Middle finger of left hand (only tip or pulp).
Pelvic Examination: 1. Hymen ruptured. There was a tear at 4' 0 Clock position
in vagina. . 2012 Khurram Shahzad v. State FSC 5 (Shahzado Shaikh, J) . 2.
Another tear at8'O clock position; Both tears were bleed. Vagina admitted one
finer easily. Two vaginal swabs and two perineal swabs were taken and sent to
the Chemical Examiner, Lahore for det~ction of semen . . Two vaginal swabs
along with envelop were sent to Professor of MiCro-Biology Centre of
Excellence, Punjab University, Lahore for detection of semen grouping (DNA
test). All the injuries occurred within probable duration of 4 hours and caused
by blunt weapon. OPINION: In my opinion, the rape was committed with her and
final opinion• would be given after receiving the report of Chemical Examiner,
Lahore. In the light of report No.2333/S, dated 24-12-2005 of the office of
Chemical Examiner', Lahore my opinion is that. the swabs sent for detection of
semen is positive. " (ix) P.W.I1 Muhammad Yar S.l. recorded statement of
the complainant Muhammad Arshad EX.PA and sent the same to the Police Station
for registration of the case; he visited the place of occurrence; prepared site
plan of the place of occurrence; effected • recove.ry . and prepared recovery
memo; recorded statements of the witnesses under Section 161 of the Code of
Criminal Procedure; arrested the accused Khurram Shehzad on 18-1-2006 and
submitted report under Section 173 of the Code of Criminal Procedure against
bim on 19-1-2006 after finding him guilty of the offence. S. • The learned
trial Court thereafter examined accused Khuriam Shehzad under secti~n 342 of
the Code of Criminal Procedure on 5-6-2006 . . He, inter alia, pleaded nis
innocence. In reply to the ques~ion "why this case against you and why the
P.Ws. deposed against you?" the accused stated as follows:-- . "It is
false case. In fact cqmplainant and his . wife run ' Brothal House' in the
MohallaH. I with many other people of the vicinity • forbade them not to run
'brothal house'. COIl?plainant wiil1 the connivance of the Investigation
Officer Joined 20125 persons in investigation on suspicion and after receiving
handsome amount from them they were released; Before this occurrence '
complainant had abducted Mst.PerVeen Bibi daughter of 6 FSC ALL PAKISTAN LEGAL
D.ECISIONS Vol. LXIV Muhammad Tufail and, she was returned with the struggle
made by the Ahle-Mohallah. First of all the complainant got arrested four real
brothers of .said Mst.Perven Bibi. namely Muhammad Khan, Anwar Yaseen and Riaz
. . After .. that Aftaband Sheb.z3.d were arrested in this case who have been
releaSed after obtaining handsome amount. I am a poor man. I cannot fulfil his
illegal . demand of the complainant• so he involved me in this false case. The
Investigating Officer did not bother to • trace the originai culprit and in
order. to save his skin made me scapegoat. The P. Ws are inter se re~ated who
have deposed falsely against me." . The accused neither made his statement
under section 340(2) •of the Cr.P.C. nor produced any defence witness .. 6. The
learned trial . Court, after hearing the learned Counsel for the contending
parties, convicted and sentenced tl).e appellant as mentioned in opening
paragraph of this judgment. 7. Ch. Muhammad • Arshad Ramay, learned Counsel for
appellant Khurram Shahzad has raised the following• points: PI.D (i) This is an
unseen occurrence . .. (ii) There is no direct evidence even Zafar, who was
siatedto be the witness of extra judicial confession of the accused, was not .
. produced. (iii) The DNA report is totally negative . . Even the circumstances
of. . the case linking the accUsed have not been explained. . . . . (iv) The
child/victimwas not in a position to record her statement. Even before the
learned trial Court she could not. give the correct namt: of her mother. ( v)
There were allegations against father .and . moth~r of the victim, therefore,
enmity cannot be ruled out.. . (vi) It is lcase of extra-judicial confession,
which is very weak type of evidence. (vii) The appellant was" not
nominated in the FIR and it was after a {ewdays that the accused was .involved.
Even the father~in-Iaw of the complainant, who . has . referred to the extra
judicial cqnfession has not brought the person (Zafar) before whom the• extra
judicial confession was alleged to have been made. The learned Couilsel has
relied upon the following case law: PLD 2006 SC 538 Abdul Mateen v. Sahib Khan
and others 2012 Khurram Shahzad v. State FSC 7 (Shahzado Shaikh, J) Extra
judicial confession must be proved by evidence of very high and un-impeachable
character. PLD 2006 Lahore 207 Nasir Mahmood and another v. The State and
another Extra judicial confession • is generally • and almost universally
accepted and perceived as a . ve ry . weak type of evidence • and the same
cannot sUffice by itself to maintain a conviction on a capital charge. (viii)
It was an evening time occurrence and • the child/victim was recovered from a
thoroughfare which shows that it was highly improbable that the incident could
have taken place as alleged. 8. On the otherhand,Rana Aftab Ahmad, learned
Counsel for the complainant has. argued as under:- (i) The occurrence took
place on 15-12 2005 at 5-00 p.m. At 5-0' Clock in December, sun is about to set
and in fact the occurrence had taken place in the • darkness when the child was
kidnapped and subjected to rape. The place from where the child was recovered
was in fact not a thoroughfare and particularly by that time in the winter the
people are confined to their homes and the accused could easily commit the said
.offence at the isolated place. (ii) The occurrence took place at an isolated
place as shown in the site plan. (iii) The . victim/child, her father •and
mother are consistent in their depositions who were not cross-questioned on
reh~vant details and material points before the learned trial Court. - (iv) The
victim/child specifically identified the accused while recording her •statement
who was present before the learned trial Court. . (v) There is no enmity from
the side 0.£ the complainant otherwise the complainant could have easily
nominated the accused right at the time of lodging the F.I.R .. He nominated the
accused only after the minor child. aged 3 years, had disclosed and given
details about the culprit after she recovered from the trawna, being admitted
in the hospital and under the effect of the offence it was quite natural for
her not to be in proper senses. (vi) So far DNA report is concerned. it was not
produced before the learned trial Court where it could have been examined. The
submission of the report after it was called at this very late 8 FSC ALL
PAKISTAN LEGAL DECISIONS, Vol. LXIV stage. in fact at the last moment. by the
Appellate Court raises many questions on this report by the defence. (vii) The
accused made extra-judicial confession before Muhamrhad Ilyas. father-in-law of
the complainant. as he was the person who could have influence on. the
complainant and tlIe accused came forward to make the confession before him
because by that time he concluded that investigation proceedings were initiated
in the vicinity; the victim/child was friend of his niece Ansa and his
involvement could be exposed any time. (viii) At the end he also stated that
the appeal was badly time barred because the appeal should have been filed
within seven days while it was filed after 30 days. . . 9. Mr. Nisar Ahmad
Virk. iearned D.P.G. appearing for the State has .raised following contentions:
. PLD (i) The F.I.R. is prompt (ii) The accused were not nominated in the
F.I.R. which shows bona fide of the complainant who had not any enmity or
ill-will against the accused. (iii) This case not only depends upon
circumstantial evidence but also the victim herself deposed against the accused
lpld her deposition before the trial Court giving eye-witness account. ' , (iv)
Solitary statf;ment of the victim/child is sufticientto prove the ' case. (v)
The statement • of the victim got corroboration ' from the statements of her
father and mother. (vi) Muhammad Ilyas P.W.8 deposed about extra-judicial
confession made by the accused before him. . (vii) The factum of occurrence was
further corroborated by the lady doctor Yasmeen Muazam P.W. •to . . (viii) The
statement of accused under section 342. ,Cr.P.C. does not ' give clean chit to
the accused himself. (ix) The DNA-report is not a basic piece of evidence . .
10. In rebuttal the le.arned Counsel for the appellant stated as under:-- (i) The
delay. i~ filing the appeal hasaiready been condoned. (ii) The victim on a
question. put to her by the learned trial Court a 2012 Khurram Shahzad v. State
(Shahzado Shaikh, 1) -FSC 9 the time of recording her statement, gave the name
of her 11l0ther as Raheela whereas her name is Mst. Naheed Irbab. (iii) The DNA
report is received in this Court, after . the Court had called for the same and
it was delayed by the concerned authority and not by . the appellant himself
for which he is not responsible. . 11. We have heard the l~a:rned Counsel for
the p~rties and per~sed the record with their assistance. Relevant portions of
the' impugned judgment have been scanned. . 12. This is an unfortunate case in
which a minor girl Mst. Kashaf, aged 
:3 years was subjected to
Zina-bil-Jabr by Khurram Shahzad appellant. The complainant lodged the F.LR.
against unknown accused. The occurrence was reported to have taken place after
5-00 p.m. (after ~bout sun set)" on 15-12-2005. The complainant,while searching,
found his daughter in precarious condition at about 9-00 p.m. and the F.I.R.
was registered at 11-00 p.m. on . the same date. Till that time the complainant
himself did' not know about the accused. From this it can easily be inferred
that at that time the complainant was in perturbed condition carrying his minor
innocent daughter, who was in precarious condition with whom such a brutal act
was committed and her treatment was to be staJ;:ted immediately after lodging
of the F.I.R. I. was only after the victim/minor girl came out of shock/trauma,
being admitted/under treatment in the hospital, that she disclosed about the .
accused. The complainant stated that his daughter informed the police that she
was taken by Khurram Shahzad, uncle (Chachu) of Mst. Ansa who gave her a Pepsi
bottIe and sweet (Berfi). Mst. Kashaf, victim/child appeared as P. W. 5 . .The
learned trial Court put her some questions to ascertain her competence to
record statement, whereafter she stated that she was given sweet and one bottle
by Khurram. She pointed towards Khurram accused, who was present in trial •
Court, and stated that the . accused was Khurram who is uncle (Chachu) of Ansa.
She further stated that she was given a bite by the said Khurram. The version
of the victim was corroborated by the statement of the lady doctor Yasmeen
Muazam P. W.1O who observed contused swellings on the upper lip and lower lip A
of the victim as well as cutting of J,niddle finger of left hand. The victim 'l
was not cross-examined and no objection was raised on any material . point,
although opportunity was g~ven to the defence, which amounts to acceptance of
her .statement on the part of defence. Ocular testimony of the prosecution
witness was natural, reliable, satisfactory and confidence inspiring. Even sole
testimony of the viCtim was enough for conviction, as it ~as truthful and
inspiring confidence. . 13. The complainant stated that when his daughter
Kashaf victiml disclosed about . the incident before the poli~e he and his wife
were also B PW 10 FSC ALL PAKISTAN LEGAL DECISIONS Vol. LXIV present. Mst.
Naheed. wife of the complainant and mother of the victim/child also appeared as
P. W. 6. Although they were not eye witnesses of the OCcurrence yet they gave
details about the facts which B were narrated to them by their minor daughter.
Both these witnesses were cross-examined but their veracity could not be
shattered. 14. , Muhammad I1yas PW.8 deposed about . the extra judicial
confession made by the accused before him. He stated that Khurram Shahzad ,
accused stated . before him that he had made a . mistake by committing Ziadti
i.e. forcible commission of zina ' and the accused requested to get him
pardoned as the complainant was his relative (son- . in-law)' .. Although extra
judicial confession is not the basic piece of evidence for• conviction' and
sentence . yet it could be used .. if properly C corroborated in, evidence .
During cross~examination of Muhammad Ilya,s P.W. no question was put to him in
denial of extra judicial confession. The contention of the learned Counsel for
the appellant that other witness of extra judicial confession i.e.• Zafar was
not produced' as a witness and ' it.is a weak type of evidence is not
established because it is a settled law that the prosecution has to prove its
case on the quality of evidence and not on the quantity of the evidence. Out of
the witnesses of extra judicial confession one Muhammad lIyas appeared. who was
cross-examined by accused but nothing c.ame on the record that the accused had
not made the extra judicial confession. Zafar was given up as Ilyas had
appeared as the main witness of extra judicial confession; and no more
additional witnesses were . considered necessary. In this , connection.
follow'ing is . very relevant: ----Prosecution was not bound to produce all the
prosecution . witnesses mentioned in the calendar of the witnesses •. except D
which were necessary to prove the guilt ofaccused---(KHADIM HUSSAIN v. State
2011 PCr.U 1443 FEDERAL SHARIAT COURT) Furthermore the statements of victim/child
P. W.5 her mother. Mst. Naheed Irbab P.W.6 and father Muhammad Arshad
complainan~ P.W;7 are consistent. with each other and corroborating .each
other. The. medical E evidence coupled' with the report of Chemical Examiner'
according to Which the swabs' were found stained with semen. lends further
support to the prosecution version. 15. No enmity is established from the
record between the. parties. The appellant in his statement under section 342
Cr.P.C. did not succeed • to point out any plausible r~ason about his false
involvement in the case instead he leyelled further allegations against the
complainant and his . wife that they run brothel in the Mohallah and he (the
accused) with other. peoplt! gf the vicinity forbade them from this act; If this
was the situation.. it is very easy for the accused to produce inhabitants of
the. PW 2012 Ktiurram Shahzad v. State FSC 11 (Shahza.do Shaikh, 1) Mohallah as
witnesses in his defence. Furthermore if the compiainant wanted to involve the
accused due to enmity, he straight away could have nominated 'him as accused in
the .F.I.R. It shows honesty of the F complainant that he lodged the F.l.~ .
against unkn9wn person and on coming• to know about the accused he gave his
name. 16. Neither accused himself appeared as a witness of his own~ account to
make statement on oath'under section 340(2) Cr.P.C. that he . was falsely
implicated by the complainant. nor he had produced any defence witness for
disproving the charge against him. In this cqnnection guidance may also be
sought from FEDERAL SHARIAT COURT • judgment reported as KHADIM HUSSAIN v .
State 2011 PCr,U 1443. . . 17. So far DNA r•eport is concerned. it was received
in this Court on 16-3-2011 from the District Police Office( Toba Tek Singh in
compliance with order dated 9-2-1011 whereas the DNA report was dated 8-3-2006.
This report did not show its receipt in the office of DPO. Toba Tek Singh.
There is nQ explanation as to why the DNA report had not 'been produced before
the learned trial Court immediately after its receipt in the DPO office . The
learned trial Court made many efforts to get the DNA report vide orders of the
learned trial Court dated 11-2-2006. 4-3-2006, 14-3~2006 and 18-3-2006. It is
noteworthy that the DNA report is dated 8•3-2006 and if it was prepared on
8•3•2006 then why it was not produced before the learned trial •Court in due
course of time. Now at appellate stage, the DNA report cannot be considered
because its submission at this belated stage raises many questions regarding
its authenticity, particularly . when it does not bear receipt/inward number
and date. and any sign of having been received by any official/competent person
in the office Of the DPO, at the relevant time . . It should have been
produced' in the trial Court where opportunity t was to be given to the
complainant party to examine/test, its validity and to paise
objections/arguments regarding the same. The • general nature of reporting in
the DNA Test without disclosing matching or non-matChing of the technical
points/elements in the DNA segments, renders it wanting in that respect. At the
end. the repott goes out o(its normal sphere/scope of reporting by inviting
m6re material of other suspects. if any . It is mentioned in the DNA report
that two oral swabs ofKhurram Shehzad were • taken in the Laboratory "in
the witness of S.-1. Muhammad Yar". However the person: who took oral
swabs of Khurram Shehzad, had not .verified the )dentityof Khurram Shehzad as
he did not mention •liis• • address, CNIC number or any other particulars in
order to testify that the person produced in the Laboratory was Khurram .
Shehzad. . No independent witness had identified Khurram S.hehzad in the
Laboratory • except S.1. Muhammad Yar as stated above. This could possibly put
some question marks on the part of the reporters even. In the DNA test, the
stains present on ~he pieces of shirt of the victim were matched with tW 12FSC
AI.L PAKISTAN LEGAL DECISIONS Vol. LXIV oral swabs of the accused without
explaining as to why vaginal swabs of the victim were not cross-matched with
the sperm of the accused, which was not taken for this purpose. Furthermore,
DNA Test is not the basic and the most reliable piece of evidence, under the
circumstances. Ocular evidence of personal suffering of the minor victim girl
who withstood the ordeal and distress of trial, duly corroborated by medical
evidence, and depositions and cross examination of all the P.Ws. produced in
this regard, could not be shattered by the defence on • any material point. In
• this~onnection, relia~ce is also made on following case-law: Utility and
evidentiary value of the DNA Test was acceptabie but not in• a case falling
under the -penal provisions of Zina H punishable under Hudood Laws having its
own standard of proof, Principles. [PLD 2005 Lah. 589 (a)]. Ocular testimony of
the prosecution witness was :natural, reliable, satisfactory andconfidcmce .
inspiring ---Prosecution had fully . proved the case. against accused beyond
any shadow •of doubt~--Defence had not proved any enmity, ill-will or malice I
against prosecution• witness---Sole testimony of the victim was I enough for
conviction, if it was truthful and inspiring confidence---Despite the fact that
DNA report about the swabs did not match with the profile of accused, • the
observations of ltuly doctors,were enough . evidence of the fact that victim
had been subjected to . sexual intercourse•--Opinion of the Lady Doctor .lent
corroboration to the statement of the victim that accused had subjected her to
zina---Non-receipt of matching report of DNA test, did not negate the ocular
account of prosecution witness--~Prosecution having proved its case beyond . .
any shadow against accused, accused had rightly been held guilty, • convicted
and sentenced by the Trial Court---Conviction and sentence awarded to accused
by the Trial Court, were maintained. (KHADIM HUSSAIN v. State 2011 PCr.LJ 1443
FEDERAL SHARIAT COURT) .18. From the facts and circumstances of the case, it is
established that the prosecution has fully proved its case beyond any shadow of
doubt. The witnesses are consistent in their depositions. The • learned Counsel
for the appellant has not been able to break the chain of consistency among the
witnesses: The learned Counsel for the appellant has also prayed thar the
appellant has . suffered more than six . years incarceration in jail and .his
sentence may.be reduced. We .are not inclined to the request . of the learned
Counsel for the appellant because the appellant has committed a heinous offence
with a, minor inIlocent J child of 3 years. She did. not even know about the
consequences of the act which was committed with her in brutal manner. This act
of the pLf) 2012 Imdad Hussain v. State FSC b (Dr. FidaMuhammad Khan, J)
appeqant not only pained, shocked, and traumatized the victim/minor girl but
left a stigma on the family, looking at our mor,.l, CUltUT~l ~nQ societal
values. The appellant does not deserve any further leniency, as 1 the learne!1
trial Court has already shown it to him, by not awarding him , the full dose of
punishment and penalty. 19. In view of what has been discussed above, Cr. '
APpealiK No .262/L/2006 filed by appellant Khurram Shahzad against his
conviction and senteIl:ce is dismissed. 20. Appellant Khurram Shahzad was
convicted under section '10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 and sentenced to 15 years R.I. He was also convicted
under section 7(c) of Anti-Terrorism Act, 1997 and sentenced to ten years' R.I.
with fine of Rs .50,OOOI- or in default thereof to further undergo three years'
S.}. Both the sentences were ordered to run concurrently with benefit of
section 382-B, Cr.P.C. 21. The conviction and sentences awarded t6 appellant
Khurram Shahzad vide judgment dated 30.08.2006 passed by the learned trial'
Court in Hudood Case No .381 ATC/2006, Hudood Case Trial No .1271 A TC/2006 are
maintained . Both the sentences shall run concurrently and benefit of section
382-B Cr.P.c. extended to the . appellant by the learned trial Court will
remain intact. 22. Accordingly Cr. Misc . No.432/L/2006 filed by Khurram
Shahzad appellant for suspension of sentence is dismissed as having . become
infructuous. 23 . The above are the reasons of our short order dated 25-1-2012
announced in the open Court. N .H.Q.l4/FSC A ppeal' dismissed.
:3 years was subjected to
Zina-bil-Jabr by Khurram Shahzad appellant. The complainant lodged the F.LR.
against unknown accused. The occurrence was reported to have taken place after
5-00 p.m. (after ~bout sun set)" on 15-12-2005. The complainant,while searching,
found his daughter in precarious condition at about 9-00 p.m. and the F.I.R.
was registered at 11-00 p.m. on . the same date. Till that time the complainant
himself did' not know about the accused. From this it can easily be inferred
that at that time the complainant was in perturbed condition carrying his minor
innocent daughter, who was in precarious condition with whom such a brutal act
was committed and her treatment was to be staJ;:ted immediately after lodging
of the F.I.R. I. was only after the victim/minor girl came out of shock/trauma,
being admitted/under treatment in the hospital, that she disclosed about the .
accused. The complainant stated that his daughter informed the police that she
was taken by Khurram Shahzad, uncle (Chachu) of Mst. Ansa who gave her a Pepsi
bottIe and sweet (Berfi). Mst. Kashaf, victim/child appeared as P. W. 5 . .The
learned trial Court put her some questions to ascertain her competence to
record statement, whereafter she stated that she was given sweet and one bottle
by Khurram. She pointed towards Khurram accused, who was present in trial •
Court, and stated that the . accused was Khurram who is uncle (Chachu) of Ansa.
She further stated that she was given a bite by the said Khurram. The version
of the victim was corroborated by the statement of the lady doctor Yasmeen
Muazam P. W.1O who observed contused swellings on the upper lip and lower lip A
of the victim as well as cutting of J,niddle finger of left hand. The victim 'l
was not cross-examined and no objection was raised on any material . point,
although opportunity was g~ven to the defence, which amounts to acceptance of
her .statement on the part of defence. Ocular testimony of the prosecution
witness was natural, reliable, satisfactory and confidence inspiring. Even sole
testimony of the viCtim was enough for conviction, as it ~as truthful and
inspiring confidence. . 13. The complainant stated that when his daughter
Kashaf victiml disclosed about . the incident before the poli~e he and his wife
were also B PW 10 FSC ALL PAKISTAN LEGAL DECISIONS Vol. LXIV present. Mst.
Naheed. wife of the complainant and mother of the victim/child also appeared as
P. W. 6. Although they were not eye witnesses of the OCcurrence yet they gave
details about the facts which B were narrated to them by their minor daughter.
Both these witnesses were cross-examined but their veracity could not be
shattered. 14. , Muhammad I1yas PW.8 deposed about . the extra judicial
confession made by the accused before him. He stated that Khurram Shahzad ,
accused stated . before him that he had made a . mistake by committing Ziadti
i.e. forcible commission of zina ' and the accused requested to get him
pardoned as the complainant was his relative (son- . in-law)' .. Although extra
judicial confession is not the basic piece of evidence for• conviction' and
sentence . yet it could be used .. if properly C corroborated in, evidence .
During cross~examination of Muhammad Ilya,s P.W. no question was put to him in
denial of extra judicial confession. The contention of the learned Counsel for
the appellant that other witness of extra judicial confession i.e.• Zafar was
not produced' as a witness and ' it.is a weak type of evidence is not
established because it is a settled law that the prosecution has to prove its
case on the quality of evidence and not on the quantity of the evidence. Out of
the witnesses of extra judicial confession one Muhammad lIyas appeared. who was
cross-examined by accused but nothing c.ame on the record that the accused had
not made the extra judicial confession. Zafar was given up as Ilyas had
appeared as the main witness of extra judicial confession; and no more
additional witnesses were . considered necessary. In this , connection.
follow'ing is . very relevant: ----Prosecution was not bound to produce all the
prosecution . witnesses mentioned in the calendar of the witnesses •. except D
which were necessary to prove the guilt ofaccused---(KHADIM HUSSAIN v. State
2011 PCr.U 1443 FEDERAL SHARIAT COURT) Furthermore the statements of victim/child
P. W.5 her mother. Mst. Naheed Irbab P.W.6 and father Muhammad Arshad
complainan~ P.W;7 are consistent. with each other and corroborating .each
other. The. medical E evidence coupled' with the report of Chemical Examiner'
according to Which the swabs' were found stained with semen. lends further
support to the prosecution version. 15. No enmity is established from the
record between the. parties. The appellant in his statement under section 342
Cr.P.C. did not succeed • to point out any plausible r~ason about his false
involvement in the case instead he leyelled further allegations against the
complainant and his . wife that they run brothel in the Mohallah and he (the
accused) with other. peoplt! gf the vicinity forbade them from this act; If this
was the situation.. it is very easy for the accused to produce inhabitants of
the. PW 2012 Ktiurram Shahzad v. State FSC 11 (Shahza.do Shaikh, 1) Mohallah as
witnesses in his defence. Furthermore if the compiainant wanted to involve the
accused due to enmity, he straight away could have nominated 'him as accused in
the .F.I.R. It shows honesty of the F complainant that he lodged the F.l.~ .
against unkn9wn person and on coming• to know about the accused he gave his
name. 16. Neither accused himself appeared as a witness of his own~ account to
make statement on oath'under section 340(2) Cr.P.C. that he . was falsely
implicated by the complainant. nor he had produced any defence witness for
disproving the charge against him. In this cqnnection guidance may also be
sought from FEDERAL SHARIAT COURT • judgment reported as KHADIM HUSSAIN v .
State 2011 PCr,U 1443. . . 17. So far DNA r•eport is concerned. it was received
in this Court on 16-3-2011 from the District Police Office( Toba Tek Singh in
compliance with order dated 9-2-1011 whereas the DNA report was dated 8-3-2006.
This report did not show its receipt in the office of DPO. Toba Tek Singh.
There is nQ explanation as to why the DNA report had not 'been produced before
the learned trial Court immediately after its receipt in the DPO office . The
learned trial Court made many efforts to get the DNA report vide orders of the
learned trial Court dated 11-2-2006. 4-3-2006, 14-3~2006 and 18-3-2006. It is
noteworthy that the DNA report is dated 8•3-2006 and if it was prepared on
8•3•2006 then why it was not produced before the learned trial •Court in due
course of time. Now at appellate stage, the DNA report cannot be considered
because its submission at this belated stage raises many questions regarding
its authenticity, particularly . when it does not bear receipt/inward number
and date. and any sign of having been received by any official/competent person
in the office Of the DPO, at the relevant time . . It should have been
produced' in the trial Court where opportunity t was to be given to the
complainant party to examine/test, its validity and to paise
objections/arguments regarding the same. The • general nature of reporting in
the DNA Test without disclosing matching or non-matChing of the technical
points/elements in the DNA segments, renders it wanting in that respect. At the
end. the repott goes out o(its normal sphere/scope of reporting by inviting
m6re material of other suspects. if any . It is mentioned in the DNA report
that two oral swabs ofKhurram Shehzad were • taken in the Laboratory "in
the witness of S.-1. Muhammad Yar". However the person: who took oral
swabs of Khurram Shehzad, had not .verified the )dentityof Khurram Shehzad as
he did not mention •liis• • address, CNIC number or any other particulars in
order to testify that the person produced in the Laboratory was Khurram .
Shehzad. . No independent witness had identified Khurram S.hehzad in the
Laboratory • except S.1. Muhammad Yar as stated above. This could possibly put
some question marks on the part of the reporters even. In the DNA test, the
stains present on ~he pieces of shirt of the victim were matched with tW 12FSC
AI.L PAKISTAN LEGAL DECISIONS Vol. LXIV oral swabs of the accused without
explaining as to why vaginal swabs of the victim were not cross-matched with
the sperm of the accused, which was not taken for this purpose. Furthermore,
DNA Test is not the basic and the most reliable piece of evidence, under the
circumstances. Ocular evidence of personal suffering of the minor victim girl
who withstood the ordeal and distress of trial, duly corroborated by medical
evidence, and depositions and cross examination of all the P.Ws. produced in
this regard, could not be shattered by the defence on • any material point. In
• this~onnection, relia~ce is also made on following case-law: Utility and
evidentiary value of the DNA Test was acceptabie but not in• a case falling
under the -penal provisions of Zina H punishable under Hudood Laws having its
own standard of proof, Principles. [PLD 2005 Lah. 589 (a)]. Ocular testimony of
the prosecution witness was :natural, reliable, satisfactory andconfidcmce .
inspiring ---Prosecution had fully . proved the case. against accused beyond
any shadow •of doubt~--Defence had not proved any enmity, ill-will or malice I
against prosecution• witness---Sole testimony of the victim was I enough for
conviction, if it was truthful and inspiring confidence---Despite the fact that
DNA report about the swabs did not match with the profile of accused, • the
observations of ltuly doctors,were enough . evidence of the fact that victim
had been subjected to . sexual intercourse•--Opinion of the Lady Doctor .lent
corroboration to the statement of the victim that accused had subjected her to
zina---Non-receipt of matching report of DNA test, did not negate the ocular
account of prosecution witness--~Prosecution having proved its case beyond . .
any shadow against accused, accused had rightly been held guilty, • convicted
and sentenced by the Trial Court---Conviction and sentence awarded to accused
by the Trial Court, were maintained. (KHADIM HUSSAIN v. State 2011 PCr.LJ 1443
FEDERAL SHARIAT COURT) .18. From the facts and circumstances of the case, it is
established that the prosecution has fully proved its case beyond any shadow of
doubt. The witnesses are consistent in their depositions. The • learned Counsel
for the appellant has not been able to break the chain of consistency among the
witnesses: The learned Counsel for the appellant has also prayed thar the
appellant has . suffered more than six . years incarceration in jail and .his
sentence may.be reduced. We .are not inclined to the request . of the learned
Counsel for the appellant because the appellant has committed a heinous offence
with a, minor inIlocent J child of 3 years. She did. not even know about the
consequences of the act which was committed with her in brutal manner. This act
of the pLf) 2012 Imdad Hussain v. State FSC b (Dr. FidaMuhammad Khan, J)
appeqant not only pained, shocked, and traumatized the victim/minor girl but
left a stigma on the family, looking at our mor,.l, CUltUT~l ~nQ societal
values. The appellant does not deserve any further leniency, as 1 the learne!1
trial Court has already shown it to him, by not awarding him , the full dose of
punishment and penalty. 19. In view of what has been discussed above, Cr. '
APpealiK No .262/L/2006 filed by appellant Khurram Shahzad against his
conviction and senteIl:ce is dismissed. 20. Appellant Khurram Shahzad was
convicted under section '10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 and sentenced to 15 years R.I. He was also convicted
under section 7(c) of Anti-Terrorism Act, 1997 and sentenced to ten years' R.I.
with fine of Rs .50,OOOI- or in default thereof to further undergo three years'
S.}. Both the sentences were ordered to run concurrently with benefit of
section 382-B, Cr.P.C. 21. The conviction and sentences awarded t6 appellant
Khurram Shahzad vide judgment dated 30.08.2006 passed by the learned trial'
Court in Hudood Case No .381 ATC/2006, Hudood Case Trial No .1271 A TC/2006 are
maintained . Both the sentences shall run concurrently and benefit of section
382-B Cr.P.c. extended to the . appellant by the learned trial Court will
remain intact. 22. Accordingly Cr. Misc . No.432/L/2006 filed by Khurram
Shahzad appellant for suspension of sentence is dismissed as having . become
infructuous. 23 . The above are the reasons of our short order dated 25-1-2012
announced in the open Court. N .H.Q.l4/FSC A ppeal' dismissed.
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