' The appellant Mukhtar Ahmad stands convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and has been sentenced to seven years' R.I. By Chaudhry Abdul Hafeez, Additional Sessions Judge, Sargodha camp at Bhalwal, vide his judgment dated 6-10-2004. The benefit of section 382-B, Cr.P.C. Was however, extended to the appellant.
2. Briefly the facts of the prosecution case are that on the application of Muhammad Aslam made to A.S.P. Bhalwal the S.H.O. Police Station Kotmomin was directed to register a case. Accordingly on the statement of Mst. Bashiran Bibi wife of Muhammad Aslam, a case F.I.R. No,399 was registered with Police Station Kotmomin on 20-12-2002. It was alleged by Mst. Bashiran Bibi that she was a married woman and mother of five children. On 25-10-2002 at about 3-00 p.m. She visited the shop of appellant Mukhtar Ahmad to purchase some grocery; she was asked by the appellant to come inside her house in order to receive "something". After she entered the house, the appellant closed the door and thereafter forcibly made her to lie on the cot and after removing her clothes she was subjected to Zina-bil-Jabr. She was threatened that in case any alarm was raised she would not be spared. In the meanwhile Muhammad Aslam, her husband and one Bagga forcibly entered the appellant's house by breaking open the door.
3. As noted above, the occurrence took place on 25-10-2002 and the F.I.R. Was recorded on 20-12- 2002. Although it has been-alleged that the local police did not register the case on the complainant's request yet the application moved by the complainant to the A.S.P. Bears the date of its presentation as 14-12-2002, i,e, after about three weeks of the alleged occurrence.
4. The investigation was carried out by P.W.3 Arif Hussain, Inspector and Muhammad Aslam, A.S.-I.
P.W.11. The appellant was sent up to face trial; he was charged under section 10(3) of the Ordinance.
The appellant pleaded not guilty and claimed trial.
5. On trial the prosecution examined 11 witnesses in support of its case. Mst. Bashiran Bibi obviously the most important witness being the victim was examined as P.W.7. She reiterated the allegation as already levelled by her in the F.I.R. Her husband Muhammad Aslam appeared as P.W.B. He supported Mst. Bashiran Bibi and in substance made statement in line with the contents of the application moved by him before the police. The rest of the witnesses are more or less formal in nature.
6. On close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. His age was recorded as 45 years. He denied the allegations and pleaded that he has been falsely implicate on account of the civil litigation pending in between him and the complainant. He also examined Muhammad Hussain, A.S.-I. As D.W.1. The said A.S.-I., most probably, was examined to refute the allegation that he confined the complainant in order to restrain him from lodging the F.I.R. This witness denied all the queries put to him, as according to him he did not remember anything. The evidence of this witness is practically reduced to insignificance.
7. The appellant on close of the trial, was convicted under section 10(2) instead under section 10(3) of the Ordinance by the learned trial Judge observing that the prosecution case inasmuch as commission of Zina-bil-Jabr is concerned, appears to be doubtful. He was sentenced to seven years' R.I., as noted above.
8. The learned counsel appearing on behalf of the appellant argued that on the face of it, the prosecution story appears to be implausible and totally unconvincing. The entire prosecution version is fraught with doubts and inconsistencies. Vague accusation has been made inasmuch as it has not even been clarified by the alleged victim as to on what pretext she was made or induced to enter the house of the appellant. It is further added that the story is inconsistent because on one hand it is asserted that she was made to keep silent and as such was made to yield to the lust of the appellant and at the same time she stated that she raised alarm which attracted her husband Muhammad Aslam and Bagga, P.W., who was not produced by the prosecution. Lastly it is argued that there is an unexplained delay in lodging the F.I.R. It is further added that the report was recorded on 20-12-2002 and the victim was medically examined on 14-1-2003. According to the learned counsel, the medical report suggestive of commission of sexual intercourse is of no legal consequence because admittedly Mst. Bashiran Bibi is a married woman.
9. The learned counsel for the State has supported the conviction of the appellant and submits that Muhammad Aslam or Mst. Bashiran Bibi has no such enmity against the appellant to fabricate a false case against him; therefore, the learned trial Judge has rightly relied upon their testimony.
10. I have heard the learned counsel at the bar and have gone through the evidence with the help of the learned counsel.
11. As argued by the learned counsel that from the very beginning the prosecution version is extremely doubtful and unacceptable. According to Mst. Bashiran Bibi, she was subjected to sexual intercourse forcibly. The allegation on the face of it is unacceptable because the appellant was not possessed with any weapon or any other instrument, which compelled her to the desire of the appellant. Had she been actually subjected to rape then the victim or the complainant would not have lost a moment to lodge the report to the police, even the application was made to the A.S.P.
On 14-12-2002, i,e, after about three weeks. Although the occurrence took place in an inhabited place yet not a single witness came forward to support any link of the prosecution story. One Bagga, who was cited as a witness, was given up declaring him as unnecessary. In a case of this nature the medical evidence is ordinarily of vital importance. In this case although the medical report as well as the report of the Chemical Examiner is positive yet the same would practically become inconsequential because Mst. Bashiran Bibi is a married woman and was medically examined after about more than two and a half months of the occurrence. The vaginal swabs obtained from Mst. Bashiran Bibi, were found to be stained with semen but no comparison of the semen was made with the subsequent semen of the appellant, therefore, it cannot be accepted with certainty that the semen on the swabs were that of the appellant. It is true that in number of cases non-comparison of the specimen of semen with that of the appellant has been condoned by this Court or even by the Honourable Supreme Court considering the same as a lapse on the part of the investigation. In this case anyhow this was of extreme importance because Mst.
Bashiran Bibi is a married woman and firstly the matter was reported to the police with significant delay and subsequently her medical examination was also conducted after a long time with an unexplained delay. The statement of the victim in these circumstances without any corroboration cannot be safely relied upon. It is pertinent to note that even the learned trial Judge did not believe the version qua commission of Zina-bil-Jabr; he found the appellant guilty of commission of Zina- bil-Raza and convicted him accordingly. In this situation both the victim and the offender are accomplices in commission of the offence. It has consistently been held that evidence of accomplice has to be relied upon only if a strong and credible corroboration is available, but the same is totally lacking in the instant case. The perusal of the evidence does not inspire confidence.
12. In view of what has been observed above, it will be unsafe to sustain the appellant's conviction, the same is therefore, set aside. The appeal is allowed. The appellant is acquitted of the charge against him. He shall be released forthwith from jail, if not required in some other case.