' HAZIQUL KHAIRI, C.J.--- This appeal is directed against the judgment dated 19-12-2005 passed by learned Additional Sessions Judge, Kasur in Hudood Case No,12 of 2004/Hudood Trial No,3 of 2005 (State v. Muhammad Hanif and others) whereby the appellant was convicted under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer R.I. For seven
(7) years with benefit of section 382-B, Cr.P.C.
2. The facts as borne out from the record are that on 25-2-2004 at about 8-00 p.m. In the area of Guava Garden of Saith Zeshan situated in Mauza Khafa falling within the jurisdiction of Police Station Mustafabad, Kasur, the appellant and three others while armed with deadly weapons committed Zina-bil-Jabr with Mst. Shahnaz Bibi wife of complainant Muhammad Mumtaz.
3. F.I.R. Exh.P.A./1 was registered on the basis of complaint (Exh.P.A.) made by Muhammad Mumtaz P.W.1. As many as nine witnesses were examined by the prosecution including P.W.2 Mst. Shahnaz Bibi complainant's wife P.W.3 Inayat and her cousin. The accused persons denied the charge and claimed trial. Lady doctor Farzana Shaheen P.W.7 conducted medical examination of victim Mst.
Shahnaz Bibi on 25-2-2004 testified that the hymen of Mst. Shahnaz Bibi was absent and her vagina admitted two fingers easily. The Investigation Officer Muhammad Shafi P.W.9 handed over three sealed parcels containing swa bs to P.W.4 Javed Arif who handed over the same on 29-2- 2004 to P.W.5 Muhammad Sharif 408/C for depositing the same in the office of Chemical Examiner, Lahore, intact. Three vaginal swa bs were taken and sent to Chemical Examiner, Lahore, which as per the report of Chemical Examiner dated 4-3-2004, were stained with semen. Dr. Mirza Nasarullah Baig P.W.6 medically examined accused Muhammad Hanif and Aslam Masih and found them fit for sexual intercourse through his report Exh.P.E. And Exh.P.F.
4. Muhammad Sharif 408/C appeared as P.W.5 who deposited three sealed parcels said to contain swa bs in the office, of Chemical Examiner, Lahore on 28-2-2004. P.W.5 is also a witness of recovery memo. Exh.P.C., through which a pistol .30 bore and two live bullets were taken into possession by the Investigating Officer on the disclosure made by accused Aslam Masih alias Nanki. He also testified recovery memo. Exh.P.D. Through which a pistol .30 bore along with magazine were taken into possession by the Investigating Officer which were recovered on the disclosure made by accused Muhammad Hanif.
5. Muhammad Rafique A.S.-I. Was examined as P.W.8 who received complaint Exh.P.A. And on the basis of which recorded formal F.I.R. Exh.P.A./1.
6. The investigation in this case was conducted by P.W.9 Muhammad Shafi, Sub-Inspector w,e,f, 26- 2-2004 i.e. One day after the date of occurrence who inspected the place and also recorded the statements of witnesses under section 161, Cr.P.C. Including a supplementary statement made by the complainant, wherein he nominated accused Muhammad Javed and Aslam Masih alias Nanki.
P.W.9 after spot investigation prepared site plan of place of occurrence Exh.P.H. On 27-2-2004 he got medically examined victim Mst. Shahnaz Bibi and moved application Exh.P.J., Exhs.P.K. And P.L.
Before the learned Illaqa Magistrate, for medical examination. On 16-3-2004 on the pointation of accused Muhammad Hanif and Aslam Masih alias Nanki pistols .30 bore which were taken into possession by P.W.9 through recovery memos. Exh.P.C. And Exh.P.D. And also prepared site plans of places of recovery of pistols Exh.P.C./1 and Exh.P.D./1. He also obtained a proclamation under section 87 of Cr.P.C. Against accused Muhammad Javed through application Exh.P.M. Later on accused Muhammad Javed was also arrested and sent to judicial lock-up. P.W.9 prepared a report under section 173 of Cr.P.C. Against the accused and sent the same to the Court for their trial.
7. During investigation the accused Muhammad Akram was found innocent as such he was placed in Column No,2 of report under section 173 of Cr.P.C. However, he was summoned for facing trial in this case. All the material witnesses of this case also did not implicate accused Muhammad Akram with the commission of offence of Zina-bilJabr with Mst. Shahnaz Bibi. As regards Muhammad Javed and Aslam Masih alias Nanki, the complainant did not disclose any source of information which led to the implication of both the said accused in this case. They were residents of three villages which are situated at different places.
8. The accused were examined under section 342, Cr.P.C. They again denied the allegations and claimed themselves to be innocent.
9. According to the impugned judgment, the learned trial Court had held that the charge framed under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has not been proved against Muhammad Javed, Aslam Masih alias Nanki and Muhammad Akram who were acquitted by him. However, the appellant was convicted of Zina-bil-Jabr under section 10(3) of the Ordinance.
10. According to learned counsel for the appellant Mr. Fazal-urRahman P.W.1 Muhammad Mumtaz had stated in his complaint that Aslam and Javed besides the appellant and one unknown person had committed rape on his wife and the appellant was the last of the four. The version of P.W.2 Shahnaz Bibi is that the appellant was the second person to have committed Zina with her and this continued for four minutes. The first rape was committed by Jawed which continued for five minutes and the third by Aslam which lasted for five minutes. The fourth rape was committed by the unknown person whereafter she became unconscious. According to the learned counsel how she could have remembered the timing of the rape by each of them in such a mental state. Further neither P.W.2 nor P.W.3 who were eye-witnesses have stated anywhere that Shahnaz Bibi had become unconscious. What is most disturbing is the contradictory statement of P.W.1 that they were sleeping when the four accused persons trespassed into his house while Inayat cousin of his wife was also there with his family. More importantly according to the deposition of P.W.1 the accused persons had committed rape with their wives i.e. His wife and Inayat's wife. Contrary to this version the victim. Mst. Shahnaz Begum P.W.2 deposed that she was sitting along with her husband P.W.1 and cousin Inayat (not sleeping) when accused came to her house and committed Zina with her only. For the first time the prosecution through her deposition alleged that the accused persons had taken away money from her but the amount has not been mentioned. Again according to her she received scratches on various parts of her body at the time of occurrence and her vagina was injured and was bleeding for which she took medicine for two days. However, P.W.7 Lady Doctor Farzana Shaheen had deposed that there was no marks of violence on her body when she examined Mst. Shahnaz the next day viz. 26-2-2005. She also stated that semen stained swa bs can easily be obtained by intercourse with her own husband. Learned counsel contended that if the prosecution story of gang rape is to be believed, the semen stained swabs attributed to the appellant shall become all the more doubtful. In these circumstances the Lady Doctor's report and chemical report would not lend support to the prosecution case against the appellant.
11. There were massive loopholes and contradictions in the deposition of P.W.1 and P.W.2, which have demolished the prosecution case. Whether the appellant entered the house when everybody was sleeping (P.W.1) or talking (P.W.2) and whether there was rape of P.W.2 only or rape of the wife of P.W.3 as well (P.W.1) would be anybody's guess on the basis of their unreliable evidence. It may be noted that P.Ws.1 and 2 are husband and wife and P.W.3 is a cousin of P.W.2 and is an interested witness as his wife was also alleged to have been raped as per P.W.1. Neither medical report nor the chemical report supports the case of prosecution. I accordingly set aside the conviction and sentence of the appellant and order his release forthwith by the jail authorities unless he is required in any other criminal case.
' Above are the reasons for acquittal of the appellant and acceptance of the appeal vide my short order, dated 2-10-2006.