Agha Rafiq Ahmed Khan, C.J.--This single judgment will dispose of Criminal Appeal No, 38/I of 2008 filed by Muhammad Naveed, appellant, against the judgment dated 11.4.2008 delivered by the learned Additional Sessions Judge, Attock, whereby the appellant has been convicted under Section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance') and sentenced to undergo 15 years RI with the benefit of Section 382-B, Cr.P.C, and Criminal Revision No, 7/I of 2008 filed by Mst. petitioner, who is victim and complainant, for enhancement of the conviction and sentences awarded to appellant Muhammad Naveed, as mentioned above.
2. Briefly facts of the prosecution case as disclosed from the contents of the FIR Ex.PB/1 registered at Police Station Rangu, District Attock, on the written statement of complainant Mst. Rubina daughter of Muhammad Shafique are to the effect that she was resident of Kamalpur and that she was unmarried. Her father and brother were truck drivers. On 1.12.2006 at about 8.00 p.m, as usual, she had gone to the house of her grand-father namely Obaidullah for watching T.V: On her return to her house at about 9.00 p.m. Muhammad Naveed (appellant) son of Muhammad Younas caste Khumar, who was also residing in the same Mohallah, was standing in the street near her house. He assaulted her and took her into his clutches. She in order to save herself made hue and cry but the accused grappled with her and put his hand on her mouth and dragged her to the cattle shed and attempted to commit rape with her. Her shirt was torn. He took her to a room of the haveli and put his pistol on her head and silenced her. He put of her shalwar and committed Zina-bil-Jabr with her. He threatened her that in case she disclosed the occurrence to any one he would not leave her alive. On return to her house she disclosed the whole occurrence to her mother Mst. Imtiaz, who further narrated the same to her father. She produced her torn shirt and requested for legal proceeding against the accused/appellant Muhammad Naveed. During investigation the appellant/accused was arrested on 16.1.2007 when his pre-arrest bail application was dismissed.
The appellant/accused was found guilty and was challenged to the Court of Additional Sessions Judge, Attock, who framed charge; which reads as under: That on 1.12.2006 at about 9.00 p.m. within the limits of Mohallah Kassi Kamalpur Moosa, within the jurisdiction of P.S. Rangu you accused committed zina bil jabr with Rubina on pistol point as such you committed an offence punishable under Section 10(3) of the offence of Zina (Ent of Hudood)
Ordinance VII of 1979 which is within the cognizance of his Court."
3. During trial the prosecution examined as many as six PWs. PW.1 Hazoor Shah HC, PW.2 Farhat Abbas constable, PW.3 Lady Doctor Ghushan, PW.4 Mst. complainant and victim of the occurrence, PW.5 Mst. Imtiaz mother of victim and PW.6 Rafiq Inspector is the Investigation Officer. The prosecution tendered the report of the Chemical Examiner (Ex.PG) in evidence, given up PWs Dr.Abdur Rehman, Khudadad and Ahsan being unnecessary and closed its evidence.
4. The appellant/accused recorded his statement under Section 342 Cr.P.C. He denied the allegations leveled against him, however, he neither wished to record his statement on oath as provided under Section 340 (2) of the Cr.P.0 nor intended to produce any evidence in his defence.
5. We have heard arguments of the learned counsel for the appellant, learned Additional Prosecutor General for State and learned counsel for the complainant, and have perused the material available on the file.
6. There is solitary version of complainant PW Mst. Rubina regarding her abduction as well as rape allegedly committed by the appellant with her, therefore, it has to be examined very carefully in absence of any independent and reliable in-discriminatory evidence, when enmity between the parties is also admitted.
7. There is inordinate delay of 20 hours in lodging the FIR as the offence is said to have.been taken place on 1.12.2006 at 9.00 p.m. but the report was made with police on 2.12.2006 at 7.30 p,m.
According to victim, she had gone to watch T.V in the house of her grand-father Obaidullah and when at about 9.00 p.m. she was returning back to her house the appellant forcibly dragged and took her to the room of the house and committed rape with her. She then reached to her house at about 10.00 p.m. and narrated the story to her mother, who told the same to her father and on the next date they went to report at the police station. No explanation has been given in the FIR for this inordinate delay. Although the complainant in Court has tried to improve her statement by stating that her father was in Lahore, but this fact has neither been mentioned in the FIR nor her mother had stated so in her statement recorded under Section 161 Cr.P.C.
8. Most essential witnesses who would have corroborated the statement of victim namely her father Muhammad Shafique and grandfather Obaidullah, have not been examined by the prosecution without any explanation.
9. Admittedly Mst. Rubina complainant is an unmarried girl and according to her she was assaulted and dragged to the haveli by the appellant, who thereafter committed rape upon her inspite of resistance. The medical evidence does not support her version at all. Lady Doctor Gulshan who had examined the complainant, has deposed as under:-- "There was history of fight. There was no sign of struggle, bruise and abrasion seen on the body of victim at the time of examination. On external examination of vulva region there was no fresh blood, no sign of external injury and no bruise and abrasion seen at the thigh at the vulva region. On internal examination, vagina admits two fingers index and middle fingers, hymen was totally not present. Two vulvac and two vaginal swabs were taken and sent to office of chemical examiner for chemical analysis. It was no case of fresh rape however, final opinion was deferred till the receipt of report of chemical examination. Ex.PA is correct carbon copy of medical examination which is in my hand writing and signed by me."
10.From the above evidence of lady doctor it is crystal clear that the victim was used to sexual intercourse even prior to the alleged incident and further there was no sign of any struggle present on her body. This medical examination falsifies the story of complainant. The lady doctor has also not given her opinion regarding recent intercourse and on the contrary categorically stated that it was not a case of fresh rape. How is it possible that a young lady who was dragged forcibly and was raped inspite of her resistance could not have any bruise, abrasions, etc on any part of her body.
11. The above discussed evidence and aforesaid circumstances would clearly indicate that prosecution had failed to prove the charge against the appellant beyond any reasonable doubt.
Consequently the appeal was allowed and the conviction and sentences of the appellant Muhammad Naveed awarded to him by the learned Additional Sessions Judge Attock vide his judgment dated 11.4.2008 were set-aside and at the same time Cr. Revision No, 7/I of 2008 filed by complainant Mst. Rubina for enhancement of sentences was dismissed, vide our short order dated 27.5.2010.