' SALAHUDDIN MIRZA, J.--- The prosecution of the appellant was initiated at the instance of Mst.
Foziya Bibi who came to the police station along with her father and filed complaint with Police Station Satgarah, District Okara, on 18-8-2005 in which she stated that she was the resident of Chak No,18/IR and on 11-8-2005 at about 6-7 p.m. She and her elder sister Mst. Ashraf Bibi went outside the village to respond to the call of nature and when they were near the "Dhari" of appellant Atiqur Rehman, Atiqur Rehman himself along with his brother Tousifur Rehman and two more persons Farooq and Ghulam Haider came there, the former two armed with guns, and herded her and her sister into a white wagon and proceeded towards Satgarah Road when their father Manzoor Hussain, Mubarik Ali and Nasir happened to be coming from the opposite direction and, their attention having been attracted by their hue and cry, tried to intercept the wagon but without success. The culprits then took the complainant and her sister towards Chak No,17/IR. By then it became dark. The culprits finally took them to an unknown Dhari where Atiqur Rehman committed Zina-bil-Jabr with Foziya and Farooq committed the same offence with her sister Mst. Ashraf. The culprits kept the complainant and her sister confined in that place from where they managed to escape on 15-8-2005. However, the crime was not at once reported to police because the culprits were beseeching the elders of the complainant's family for a settlement which could not be effected whereupon the complainant lodged the complaint with the police on the basis of which F.I.R. No,135 of 2005 was recorded.
2. During the course of investigation, the police found Tousifur Rehman and Ghulam Hyder innocent and declared Muhammad Farooq absconder as he could not be apprehended and only appellant Atiqur Rehman was found guilty and was arrested on 17-9-2005 and after completing the investigation he was sent up for trial before the Sessions Court, Okara and the case proceeded in the Court of Additional Sessions Judge, Okara, who, on the basis of the evidence adduced before him by the prosecution, found him guilty under section 10/3 of Zina (Enforcement of Hudood)
Ordinance, 1979, and sentenced him to rigorous imprisonment for five years vide judgment, dated 1-7-2006. The appellant impugns this judgment through this appeal. Learned counsel for the appellant and learned State counsel have been heard and the record has been perused with their help.
3. We find glaring discrepancies in the prosecution case. The delay in lodging the F.I.R. Has not been satisfactorily explained. The offence was allegedly committed on 11-8-2005 and the father of the alleged bductees Manzoor Hussain --- is said to be the eye-witness of kidnapping. It is reasonable to expect that he would have lodged the report immediately after seeing her daughters raising hue and cry when being taken away by the accused persons in a Dala; whey he did not do so and what he was doing from llth to 15th August, when his daughters came back all by themselves? And what he was doing from 15th August to 18th August, when Mst. Foziya lodged the report? In the complaint and the F.I.R. It is stated that the appellant and others had approached the complainant party for a settlement and therefore, the crime was not at once reported to the police and it was reported only after the conciliation proceedings failed. However, appearing as P.W.1, complainant Mst. Foziya gave up this explanation and stated that immediately after her and her sister's escape from the clutches of the accused her father had been visiting the police station but the case was not registered as accused were influential persons. Even this new explanation for the delay in lodging the F.I.R. Was not substantiated through any evidence and rests on the solitary statement of the complainant. Complainant's father, who is stated to have been visiting the police station for lodging the report but police did not take any action, has not even appeared as a prosecution witness to support this explanation of delay, if for nothing else. Such unexplained delay has never been countenanced by the Courts and one reported judgment on the point is Sarja v. State 1992 PSC (Cr.) 1002.
4. It is also not understandable how the two girls were kept confined in the Dhari in Chak No,17/IR for four days without attracting the attention of passers-by and how they, eventually, managed to escape all by themselves. As per F.I.R. As well as the deposition of the complainant and her sister (P.Ws.1 and 2), Manzoor Hussain, father of the two sisters and two other persons Mubarik and Nasir saw the two sisters being carried away in the Dala; they were thus, eye-witnesses of the offence of abduction but none of the three was examined as a witness. Presumption arises that if they had been produced in Court as witnesses they would not have supported the prosecution case. Bad relations between the complainant and accused party are also established through the cross- examination of the complainant who admitted that Khaliqur Rehman is brother of appellant Atiqur Rehman and that Khaliqur Rehman had lodged F.I.R. No,280 of 1995 under section 377, P.P.C. read with section 12 of Zina Ordinance against Abdul Ghafoor who was husband of her sister P.W.2 Ashraf Bibi and therefore, there was rivalry between her family and family of the accused. P.W.2 Mst.
Foziya also admits this position. Learned trial Judge however, rightly says that the complainant party would not have waited for ten years to falsely implicate the appellant and the co-accused.
However, bad relations between the two parties have been established and this circumstance does adversely reflect on the prosecution case. Medico-legal examination of the two sisters is also not of much help to the prosecution. It was done after four days of their alleged escape from the clutches of the appellant and the co-accused. No doubt, semen stains can still be found in the vaginal swa bs after this much delay but one of the sisters is married and therefore, it cannot be guaranteed that during these four days she did not indulge in sexual intercourse with her husband; at any rate, the allegation of Zina with her is not against the appellant but against Farooq (proclaimed offender). Here we may point out that learned trial Judge observes in para.12 of the judgment that "according to Dr. Shagufta (P.W.3) Foziya Bibi victim cannot be said habitual of intercourse". This observation is not factually correct because the lady doctor had said quite the opposite of what learned Judge attributed to her. Her actual words are "it can be said that Fouziya Bibi was habitual of intercourse". Learned counsel for the appellant is however, wrong in arguing that the date of delivery of phials and swabs to the Chemical Examiner as given by P.W.7 Muhammad Tufail constable differs from the time of receipt given by the Chemical Examiner in his reports. There is no such discrepancy; both, the deposition of P.W.7 as well as the reports of Chemical Examiner, show that the articles were delivered to the Chemical Examiner on 22-8-2005.
An Advocate is an officer of the Court and he is not expected to misguide it. Although the swabs were sent to Serologist for semen grouping, as noted on the reports of the Chemical Examiner but report of Serologist have not been produced and no explanation is given for their non-production.
The incompetency and negligence of the Investigating Officer is also evident from the fact that in the letter, dated 19-8-2005 (Exh.P.F.) addressed to the Magistrate for seeking permission to get Mst.
Ashraf Bibi medically examined he writes that "Mst. Ashraf Bibi was abducted by Farooq etc. On 18- 8-2005 and escaped from the clutches of the abductors on 15-8-2005". Another glaring negligence of the Investigating Officer (P.W.5 S.-I. Bashir Ahmad) is that he did not care to inspect the place (the Dhari) in Chak No,17/1-R where the two sisters were allegedly kept confined for four days and were subjected to Zina-bil-Jabr. Learned State counsel conceded to the unexplained delay in the lodging of the F.I.R. But insisted that the two sister abductees were consistent in their deposition as to the abduction and commission of rape but, unfortunately, this consistency is of no avail in the face of the flaws found in the prosecution case.
5. In view of the above discussion we disagree with the verdict of guilty passed by learned Additional Sessions Judge, against the accused who, under the circumstances, seems to be entitled to benefit of doubt. We would therefore, set aside the impugned judgment and the conviction of appellant Atiqur Rehman and direct that he should be released forthwith if not required in any other case.