DR. FIDA MUHAMMAD KHAN, J.---This Criminal Appeal filed by Mumtaz Ahmad appellant/accused son of Lakoo is directed against the judgment dated 8-11-2007, passed by the learned Additional Sessions Judge, Arifwala, District pak Pattan Sharif, whereby he has convicted the appellant/accused under section 10(3) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced him to suffer fourteen years' RI. The benefit of section 382-B, Cr.P.C. has been extended to him.
2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. (Exh. PA/1) registered at Police Station Saddar Arifwala on the statement (Exh.PA) of Muhammad Murad, complainant (P.W.1) on 5-9-2005 are to the effect that on the same day at about 12/12.30 Noon he was present in his land. His niece Mst. Razia Bibi was to bring meal for him. When she did not reach there he got worried and therefore along with Muhammad Abbas and Liaqat he started her search. While they were going towards the village and reached near the land of Lal son of Mehram they heard cries and weeping of Mst. Razia Bibi coming from inside the maize crop. He stated that they saw Mumtaz son of Lakoo committing Zina-bil-Jabr on a heap of chuff inside the field of maize crop. They saw the occurrence themselves. Mumtaz picked up his revolver from the ground and threatened that if any one proceeded near him he would kill, him. They were frightened. In the meanwhile, Mumtaz appellant/accused picked up his shalwar and while bran-dashing his revolver in the air decamped from the spot. Mst. Razia Bibi was found unconscious. While they were taking her to Police Station for report the police met them on the way. Therefore, he reported the matter accordingly and requested the police for action against the appellant/accused. Subsequently the appellant/accused was arrested and on completion of the investigation, he was challaned. He was formally charged on 16-12-2006, but he did not plead guilty and claimed trial.
3. At the trial, the prosecution examined as many as eight witnesses in all. P. W.1 is Muhammad Murad. He is the complainant. He reiterated the same version as mentioned herein above. P.W.2 is victim Mst. Razia Bibi. She stated that on the day of occurrence at about 12/1-00 p.m. she was going to her land, with meal for her real uncle. When she reached near the field of Lal Daha, suddenly, the appellant/accused Mumtaz appeared and caught hold of her and took her in the maize crop on pistol point. He committed Zina-bil-Jabr with her on the heap of Chaff. She started weeping and on her hue and cry her uncle Muhammad Murad along with Muhammad Abbas and Liaqat was attracted over there. She stated that she became senseless. She added that she was medically examined in the Tehsil Headquarter Hospital, Arifwala. According to her, the police recorded her statement under section 161, Cr.P.C. P.W.3 is Muhammad Hussain, constable. He deposed that on 17- 9-2005 the appellant/accused while in police custody disclosed that he could recover the weapon of offence. This P.W. along with Maqsood Ahmad SI led by the appellant/accused to Chak No,67/EB where he got recovered pistol 32 bore from underneath the tree. The 1.0. took the same into possession. P.W.4 is Muhammad Khan constable. He stated that on 9-9-2005 Muhammad Nawaz Muharrir handed over to him one sealed parcel, containing semen, for onward transmission to the office of Chemical Examiner, Multan. He deposited the said parcel in the office of Chemical Examiner, Multan on 10-9-2005. P.W.5 is lady doctor Rukhsana Asim Sokhera, W.M.O. She examined the victim Mst. Razia Bibi and observed as under:-- "Valva normal. Vagina profuse bleeding. P/V Vagina admitted two fingers with difficulty tightly.
Three high vaginal swa bs were taken, sealed and sent to Chemical Examiner, Multan for the detection of semen and spermatozoa typing. Referred to Gynecologist."
' P.W.6 is Safdar Mehandi, HC. He deposed that on 5-9-2005 Maqsood Ahmad SI, sent the complaint (Exh.PA) through Altaf Hussain constable. He incorporated the contents of the same into F.I.R. (Exh.PA/1). P.W.7 is Maqsood Ahmad, SI. On 5-9-2005 he recorded the statement (Exh.PA) of Muhammad Murad, complainant. He sent the complaint to the Police Station through Altaf Hussain, constable, and on its basis F.I.R. (Exh.PA/1.) was recorded by Safdar Mehandi, MHC. On the same day he visited the place of occurrence where he prepared the rough site plan (Exh.PE). All notes and drawings were prepared by him. He also recorded statements of the P. Ws. Muhammad Abbas and Liaqat Ali. On 8-9-2005 he went to the Hospital where, after taking permission, he recorded the statement of Mst. Razia Bibi victim. He has arrested the appellant/accused. He also recorded the statement of Muhammad Hussain and Muhammad lqbal constables. On 24-9-2005 he sent the appellant/ accused through Muneer Ahmad constable for his medical examination regarding potency. He also got medically examined Mst. Razia Bibi. P.W.8 is Muhammad Nawaz, Muharrir of the Police Station.
' He stated that on 9-9-2005 the Investigating Officer handed over to him one sealed parcel for sending the same to the office of Chemical Examiner, Multan. He delivered the same parcel to Muhammad Khan, constable for depositing the same in the office of Chemical Examiner, Multan.
On 10-9-2005 he deposited the same in the office of Chemical Examiner, Multan.
4. The appellant/accused recorded his statement under section 342, Cr.P.C. wherein he denied the allegations and pleaded to be innocent. While responding to Question No,5, he stated as under:-- "This is a false case registered against me by the complainant in connivance with the local police due to previous enmity between Maiken and Daha bratheri and political rivalry and party faction in the village. Muhammad Murad complainant of this case lodged a rapt No,11 dated 5-9-2005 regarding the alleged above occurrence mentioned therein that one Aziz son of Bakhoo had committed Zina-bil-Jabr with victim Mst. Razia Bibi and during investigation it has transpired that one Baghi son of Yara had actually committed Zina with Razia Bibi but due to the only reason that Baghi son of Yara family and complainant family has a joint source of irrigation for the agricultural land which is installed in the land of Baghi son of Yara and due to the fear of deprivation of Tube Well water complainant did not mention the name of actual culprit and first tried to implicate Aziz son of Bakhoo and later on mentioned my name falsely as culprit. No independent P.Ws. have been produced by the prosecution to prove the charges. I am innocent in this case."
' The appellant did not wish to be examined on oath as provided under section 340(2), Cr.P.C., however he produced Rapt No,11 dated 5-9-2005 which is (Exh.DA) in his defence.
5. We have heard the learned counsel for the parties and have perused the record with their assistance.
6. Learned counsel for the appellant vehemently contended that the case of prosecution against the appellant/accused is highly doubtful, that prior to lodging of the alleged report, the name of appellant was not mentioned as accused and instead the name of one Aziz son of Bakoo was mentioned therein, that the material witnesses have been given up, that the appellant was first offender and matriculate, therefore, in the alternative, the learned counsel prayed for reduction in the sentences as the appellant had almost completed four years imprisonment. Learned counsel for the complainant contended that the appellant was nominated as accused in the F.I.R. and there was no need for the complainant to substitute the real offender. The learned Deputy Prosecutor-General also supported the impugned judgment.
7.We have given our anxious consideration to the contentions raised by the learned counsel for the parties and have minutely perused the record with their assistance.
8. Before dilating upon the evidence on record it is necessary to refer to the statement of appellant/accused made by him under section 342, Cr.P.C, wherein while replying to question No,5 he alleged, inter alia, that Muhammad Murad complainant of the case lodged report No,11 on the day of occurrence and nominated one Aziz son of Bakoo as the accused who had committed Zina- bil-Jabr with Mst. Razia Bibi. Perusal of the record reveals that this report was admittedly registered by P.W.6 Safdar Mehendi who on the said date was posted as Moharrir. Though he lodged F.I.R.
(Exh.PA/1) wherein the appellant/accused has been nominated but it was on the basis of complaint (Exh.PA). In cross-examination he admitted that on the same day prior to lodging of the F.I.R. he had entered report No,11 on behalf of Muhammad Murad complainant and had got medically examined Mst. Razia Bibi, on that basis. He admitted that the name of one Aziz son of Bakoo had been mentioned as accused in that report. He also admitted that subsequent to that, in an application for medical examination, he had also written that Aziz son of Bakoo had committed Zina-bil-Jabr with Mst.Razia Bibi and had done so in accordance with the statement of Muhammad Murad complainant and Mst. Razia Bibi, victim. P.W.7 Maqsood Ahmed SI who had recorded statement (Exh.PA) of the complainant, had mentioned the name of the appellants/accused Mumtaz Ahmed son of Lakoo. The F.I.R. was lodged on the basis of this statement. It is interesting to note that parentage of Aziz and Mumtaz appear to be almost the same. The appellant has referred to another person namely Baghi son of Yara who according to him was the actual offender and instead of him he was substituted. P.W.7 who recorded statement of the complainant has admitted that report had been entered in the daily diary register. He did not remember the exact time when the complainant had met him at Qaboola Chowk while making his report. However the time written on the F.I.R. (Exh.PA) is 0745 p.m. while the time written on Exh.DA is 0230 p.m. on the same day, i.e, 5-9-2005. He admitted that before registration of the case Mst. Razia, victim had already been sent to hospital through Moharrir of the Police Station.
Interestingly he has admitted that as per (Exh.PA) Mst. Razia was sent by him through Muhammad Hussain constable for medical examination but that was written inadvertently. He admitted that as written in the afore-mentioned report on the statement of complainant and victim who had appeared before the Moharrir Head Constable, the name of person who had committed the offence, was Aziz son of Bakoo. Although this P.W. has admitted that he had bound down Abdul Khaliq, Lambardar of the village, to produce Muhammad Amin alias Baghi for 22-9-2005, he has rejected the suggestion that Muhammad Amin alias Baghi was the real culprit and due to that reason he was not appearing himself nor Abdul Khaliq Lumbardar had produced him on 22-9- 2005 as well as on 25-9-2005. He also did not enquire form Aziz son of Bakoo in spite of the fact that his name was mentioned in report No,11 as narrated by the victim and complainant. It is also pertinent to mention that although P.W.1 Muhammad Murad and P.W.2 Mst. Razia Bibi have deposed about commission of offence by the appellant/accused. Muhammad Mumtaz and MLR produced by P.W.5 lady doctor Rukhsana Asim Sukera, WMO, read with report of the Chemical Examiner (Exh.DD), confirm commission of the offence, the name of the offender according to (Exh.
PC) is Aziz son of Bakoo. This confusion is further strengthened by another circumstance as well.
According to the complainant, both Muhammad Abbas and Liaqat had also seen the occurrence but they were given up, as "being unnecessary", on the written application of complainant. We are conscious of the fact that examination of all eyewitnesses is not necessary but in the circumstances mentioned herein above their appearance as P.Ws. would have been beneficial in removal of the confusion regarding the name of actual offender/accused. We may mention that the appellant/accused has already been behind the bar for more than four years.
9. In view of the above, we feel that the complainant and victim of the offence, as per witnesses of the prosecution, made allegation against different persons, firstly against one Aziz in report lodged by both at 2-30 p.m. and secondly against the appellant/accused Mumtaz Ahmed at about 7-45 p.m. on the same day. As discussed above, this confusion has remained till the last and has not been clarified by the prosecution. Thus in the given circumstances, there is a doubt in the name of actual offender and the benefit of the same must go to the appellant/accused.
10.Consequently, for the reasons stated above, we allow this appeal, set aside the conviction and sentence of the appellant Mumtaz Ahmad son of Lakoo and acquit him of the charge. He shall be released forthwith, if not required in any other case.