' SALAHUDDIN MIRZA, J.--- This appeal is directed against the judgment, dated 19-12-2006 passed by learned Additional Sessions Judge, Chunian, Mr. Zafar Hussain Bhatti, in Crime No,166 of 2006 of Police Station Chunian whereunder appellant Nazir Ahmad has been convicted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to ten years' rigorous imprisonment and fine of Rs,10,000 or S.I. For six months in lieu of fine.
2. According to complainant Mst. Razya Bibi, resident of Mouza Lambai Khalsa, Tehsil Chunian, her 13 years old daughter Sobia was alone in the house in the afternoon of 15 March, 2006, as her (complainant's) husband was out on his work and she herself was cutting grass in the nearby "Dheri" when appellant Nazir Ahmad of the same village came to her house and, finding her daughter all alone, committed Zina with her. On hearing her hue and cry, the complainant and one Hafiz. Ashfaq, who was watering nearby field, rushed to her house but Nazir Ahmad saw them coming and managed to escape from the house. Mst. Sobia was lying smeared with blood and her clothes were also smeared in blood. Mst. Sobia informed the complainant that Nazir Ahmad had committed Zina-bil-Jabr with her.
3. Appellant Nazir Ahmad was arrested on 30-3-2006 and after necessary investigation was sent up for trial in the Court of Additional Sessions Judge, Chunian who charged him under section 10 of the "Zina Ordinance". The prosecution examined, in all, seven witnesses out of hom P.W.1 complainant Razya Bibi, P.W.2 Muhammad Younus (an alleged eye-witness), P.W.4 Lady Doctor Samia Zia, P.W.5 Hafiz Muhammad Ishaque (mentioned in the F.I.R. As an eye-witness) and P.W.7 A.S.-I. Muhammad Sharif are worth consideration. It is also to be noted that the victim girl was not only not examined in the Court as a witness but even her name does not find any place in the calendar of witnesses in the chalian filed by the Investigating Officer.
4. Complainant Razya Bibi (P.W.1) did not support the prosecution case as made out by her own report and F.I.R. She stated that she had nominated the appellant in the F.I.R: merely on suspicion and that the A appellant had not committed Zina-bil-Jabr with her daughter. She was declared hostile by the prosecution. In cross-examination to State Counsel she owned the contents of her application as well as of F.I.R. But said that they were based on suspicion and in cross-examination to defence counsel she conceded that Nazir Ahmad had pleaded his innocence on oath and she believed him and had accepted his plea of innocence. P.W.2 Younus, an alleged eye-witness, just denied everything and said he did not know anything about this case and he was also declared hostile. P.W.4 Lady Doctor Samia, W.M.O. Of Kot Radha Kishan Hospital, had medico-legally examined the girl on 18-3-2006 and she found a bruise on her left leg. She had obtained samples from vagina, valva and blood-stained piece of Shalwar and sent them to the Chemical Examiner whose report dated 3-6-2006 (but signed by the Chemical Examiner. On 31-5-2006) shows that vaginal swa bs and the piece of Shalwar were all found containing stains of blood and semen. P.W.5 Hafiz Ishaque is the person who is named in the F.I.R. As the person who, along with the complainant, was attracted to the house of the complainant on hearing the shrieks of the girl and seen the occurrence but he has also said good-bye to the prosecution case and said that he knew nothing about this case. He was also declared hostile by the prosecution and the entire prosecution case was put to him in cross-examination by the State counsel but he denied all of it.
In cross- examination to the defence counsel he said that in his view appellant Nazir had not committed the offence and had been falsely implicated in this case.
5. Learned counsel of the appellant argued that it was a case of no evidence and therefore, the appellant deserved to be acquitted but learned trial Judge convicted him even though there was no evidence against him and prayed that the appeal be accepted and he be acquitted. Learned State Counsel argued that the complainant had patched up with the appellant and therefore, neither she nor other witnesses deposed honestly but the medical evidence proves rape and even the appellant in his 342, Cr.P.C. Statement conceded that the girl had been raped even though he blamed somebody else for the offence.
6. We are inclined to agree with the view of learned counsel for the appellant that irrespective of the fact as to whether the parties had compromised out of the Court and for that reason the complainant and other eye-witnesses did not depose against the appellant in the Court, the fact remains that it is a case of "no evidence" as no witness has not only not said a word against the appellant but all of them---the complainant and the two alleged eye-witnesses---have positively stated that the appellant is innocent and, therefore, the appellant is entitled to benefit of doubt. No doubt, the medical evidence does establish the commission of rape with the victim but it does not establish that the perpetrator of the crime is the appellant. Besides, Mst. Sobia (the victim) has not even been examined. We would, therefore, give benefit of doubt to the appellant, set aside the impugned judgment and acquit him. He may be released if not required in any other case.