' SAGHEER AHMAD QADRI, J.---Brief facts in order to dispose of this criminal appeal are that P.W.4 Mst. Shah Jehan widow of Gul Sher, complainant-victim lodged written complaint (Exh.PL) on the basis of which F.I.R. (Exh.PE/1) was registered mentioning therein that she was the resident of Dhok Gulsher Dakhli. Mianwala, Tehsil Pindigheb and earned her livelihood by selling bangles; that on 27- 11-2008 at about `Sham Wela' she was coming towards her house after selling bengles through jungle when abruptly accused Waheed Murad alias Sheikha (appellant) armed with Chhurri emerged at the scene of occurrence and forcibly fallen her on the ground. She raised hue and cry upon which the accused threatened her to kill and then forcibly removed her shalwar and committed rape with her. In the meanwhile P.W.5 Muhammad Hanif son of Lal Khan and complainant's son Imran (given up P.W.) came at the spot. On seeing them the accused fled away froth the place of occurrence. Thereafter the matter was reported to the police and the instant case was registered.
2. P.W.8 Sajjad Hussain Shah, S.I. Is the Investigation Officer who after lodging the F.I.R. (Exh.PE/1) sent the victim-complainant Shah Jehan for medical examination to Tehsil Headquarters Hospital, Pindigheb under the escort of Muhammad Ameer, Constable-232. Thereafter he inspected the place of occurrence, prepared site plan Exh.PF. He took into possession broken pieces of bangles of Shah Jehan vide memo Exh.P.D. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. After medical examination P.W.2 Muhammad Ameer, Constable-232 handed him over one sealed file containing swa bs, shalwar and envelope given by P.W.1 Lady Dr.Tabassum Shaheen vide memo Exh.PC. Subsequently he sent the parcel of swabs to the office of Chemical Examiner for detection and grouping. The I.O. Arrested the appellant on 30-11-2008 who in the presence of witnesses got recovered Chhuri (P1) vide memo Exh.PF.
3. After completion of the investigation challan was submitted in the trial Court. The appellant- convict was charged on 19-1-2009 under section 376, P.P.C. To which he pleaded not guilty and claimed trial.
4. Prosecution examined as many as 8 witnesses out of which P.W.4 Mst. Shah Jehan, complainant- victim and P.W.5 Muhammad Hanif are the eye-witnesses of the occurrence who supported the contents of the F.I.R. (Exh.PE/1). P.W.1 lady Dr. Tabassum Shaheen conducted the medical examination of the victim-complainant and he proved her report Exh.PA. P.W.2 Muhammad Ameer, Constable-232 handed over sealed envelope, one parcel of shalwar to the 1.O./P.W.9. P.W.3 Ibrar Hussain, Constable-937 stated that the I.O. In his presence took into possession broken bangles (P2) from the place of occurrence vide memo Exh.PD. P.W.6 Ishfaq Amin, Constable-599 and P.W.7 Abdul Ghafoor, HC-344 remained associated with the investigation about keeping of the parcels in safe custody and further submitting before the concerned Laboratory for Expert opinion. P.W.9 Dr. Aftab Hussain Shah provided medical evidence whereby he opined that genital organs as well as physical fitness of the appellant-convict show that he is a fit to perform sexual act Exh.P6 is the report signed by him.
5. The statement of accused-appellant was recorded under section 342, Cr.P.C. Whereby he denied the allegation. While answering to a specific question 'why this case against you and why the P.Ws.
Deposed against you', he replied as under:- "I have been falsely involved in this case due to enmity with Dilpazir Girdawar. The daughter of complainant is maid servant in house of Dilpazir. The complainant in connivance with said Girdawar got registered false case against me. P. Ws. Are relatives of complainant."
' However, he did not appeal in the witness box under section 340(2), Cr.P.C. Nor led any defence evidence.
6. After hearing both sides the learned Additional Sessions Judge, Pindigheb vide judgment dated 31-8-2009 convicted the appellant under section 376, P.P.C. And sentenced to rigorous imprisonment for 25 years. He was also held liable to pay Rs,50,000 as compensation in terms of section 544-A, Cr.P.C. To the complainant and in default of payment thereof to undergo further simple imprisonment for three months. Benefit of section 382-B, Cr.P.C. Was however, extended to the appellant. Hence, this appeal.
7. Learned counsel for the appellant argued that the allegations against the appellant levelled in the prosecution evidence right from the beginning based on false and fabricated facts; that there is unexplained delay of five hours in lodging the F.I.R.; that it is a case of no evidence; that there are two witnesses namely P.W.5 Muhammad Hanif son of Lal Khan and Imran son of Gulsher who are shown as witnesses of the alleged occurrence out of which Imran son of Gulsher who is real son of the victim/P.W.4, refused to appear as a witness and has been given up by the learned prosecutor, however, Muhammad Hanif appeared a P.W.5. Statement of P.W.4 Shah Jehan, victim and the alleged eyewitness P.W.5 Muhammad Hanif are contradictory to each other on material aspects; that P.W.5 Muhammad Hanif during cross-examination stated that he saw the appellant and the victim in naked condition while P.W.4 Mst. Shah Jehan, victim stated that she had already worn shalwar before the arrival the P. Ws. At the spot; that P.W.5 Muhammad Hanif was confronted with his statement under section 161, Cr.P.C. Wherein he stated that Nowab Khan son of Sher Khan was accompanying him but he negated this version while appearing as witness; that said Nowab Khan son of Sher Khan was never cited as witness by the prosecution nor examined that P.W.4 Mst. Shah Jehan, victim, in her examination-inchief stated that the appellant had chhuri in left hand while during cross-examination she changed version showing that chhuri was in his right hand; that no mark of violence was found present on the person of the victim by the Medical Officer although the victim stated that the place, where she was assaulted, was a bushy place; that in his statement P.
W.1 Dr. Tabbasum, who examined the alleged victim, did not opine about the commission of offence and report of Chemical Examiner although in positive but report of Serologist was never produced thus, this evidence is inconsequential in these circumstances. Reliance is placed on Mst.
Ehsan Begum v. The State (PLD 1983 Federal Shariat Court 204) and Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161').
8. Conversely learned Deputy Prosecutor-General assisted by the learned counsel for the complainant while supporting the judgment of the learned trial Court has argued that the report of Chemical Examiner besides of lady doctor P.W.1 Dr. Tabbasum Shaheen corroborate the fact that the complainant was subjected to rape; that the eye-witness P.W.5 Muhammad Hanif and P.W.4 Mst. Shah Jehan complainant-victim have fully corroborated the prosecution story on all material aspects; that the learned trial court after proper appreciation of evidence rightly passed the judgment. While relying on Gulsher and another v. The State (2004 YLR 602), Habib Ullah and others v. The State and others (2007 PCr.LJ 1851), Muhammad Khan v. The State and others (2008 SCM R 1331) and Kela and others v. The State (1968 PCr.LJ 185), it was prayed that appeal be dismissed.
9. I have heard the learned counsel for the parties and perused the record.
10. As it is already mentioned, facts narrated by the complainant/victim Mst. Shah Jehan that she was coming back to her house on her way suddenly appellant emerged out in the jungle having Chhuri in his hand, overpowered her and then committed rape. According the F.I.R. The occurrence was allegedly witnessed. By P.W.5 Muhammad Hanif and Imran (given up P.W.) who is real son of the complainant/victim. The said Imran has been given up by the learned prosecutor as being unnecessary on the asking of P.W.4 Mst. Shah Jehan, complainant/victim. Therefore, the prosecution left with the statement of P.W.4 Mst. Shah Jehan and P.W.5 Muhammad Hanif who is the brother of the son-in-law of the complainant/victim. P.W.4 Mst. Shah Jehan during cross- examination stated-- " ... The accused met me at a distance covered within half hour. The accused was ambushed and suddenly came there. He was having a chhuri in his right hand. The scuffling was taken place between me and the accused. He did not hit me with chhuri. The scuffling remained for about one hour between me and accused. After one hour the scuffling the accused committed sexual intercourse with me. It took ten minutes. The P. Ws. Came at the spot after 2, 3 minutes after completion of intercourse from western side. P. W. Imran is my son whereas P.W. Muhammad Hanif is brother of my "Damad'. When P. Ws. Attracted to the spot, the accused was running. When P. Ws.
Reached at the spot, I had already worn the shalwar before their arrival. My son and brother of Damad chased running accused. Both P. Ws. Came back to the spot and then they took me to the home..."
11. This witness during further cross-examination stated that she went to the police station along with her two sons and a driver. P.W.5 Muhammad Hanif did not accompany her to the police station as he after leaving the complainant/victim to her house went to his own house which was situated near to her house.
12. The sole eye-witness of the occurrence, namely, Muhammad Hanif (P.W.5) in his examination- in-chief stated that he saw the occurrence from a distance when Waheed Murad, appellant/accused was committing zina with the complainant Mst. Shah Jehan and at that time Imran (given up P.W.) was with him. He stated that on seeing them appellant/accused fled away towards the Jungle. This witness during cross-examination when confronted with the statement under section 161, Cr.P.C. Refuted the suggestion that he made statement before the police that one Nawab Khan son of Sher Zaman was also with him when they saw the alleged occurrence but when confronted with his statement it was found recorded so. Similarly, in his statement under section 161, Cr.P.C. Name of Imran the other eye-witness was not found recorded which shows that he made some deliberate improvements in his statement at the trial. He in contradiction to the statement of P W.4 Mst. Shah Jehan, complainant/victim stated that he saw the complainant/victim as well as the appellant/accused in naked condition. He, however, did not try to catch the appellant/accused as he had run away from the alleged place of occurrence. This witness in contradiction to the statement of P.W.4 Mst. Shah Jehan during cross-examination stated that he along with Pervez son of Laal Khan, Imran and Mst. Shah Jehan went to the police station together. If the statement of P.W.4 Mst. Shah Jehan, complainant/victim and P.W.5 Muhammad Hanif are seen there are major contradictions present in their statements and these contradictions are of such natures that if anyone out of them is believed the other one would definitely to be disbelieved.
13. In order to corroborate the statement of P.W.4 Mst. Shah Jehan, complainant/victim the prosecution relied on the medical evidence provided by P.W.1 Dr. Tabassum Shaheen who appeared and proved her MLR Exh.PA. She did not give her opinion if sexual assault was committed on Mst. Shah Jehan. She secured vaginal swabs and bloodstained shalwar of the victim and sent the same to the Chemical Examiner. Although according to the report of the Chemical Examiner Exh.PB the swa bs and shalwar were found stained with semen, however, Chemical Examiner further sent the same to the Serologist for blood grouping purposes. No such report was ever brought on record by the prosecution. Although according to the report (Exh.PG) of P.W.9 Dr. Aftab Hussain the appellant/accused was found fit to perform sexual act but neither blood grouping neither report nor any such opinion of the Serologist was produced by the prosecution thus this piece of evidence is of no avail to the prosecution.
14. It has been held by the Hon'ble Federal Shariat Court in Mst. Ehsan Begun v. The State (PLD 1983 FSC 204) that as facility of grouping of semen is available in Pakistan, therefore, the Medical Officer while examining the male for potency purposes should obtain the specimen of semen so that it be sent for grouping and matching with .The semen if secured from the person/body of the viginal swa b of the victim. Another judgment titled Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161) it has been observed by the Hon'ble Federal Shariat Court of Pakistan that:-- "Vaginal swabs of the victim girl were found to be semen stained by the Chemical Examiner, but the report on the swab sent to the Serologist for semen grouping was not produced in Court and the Chemical Examiner's report had lost its evidentiary value-- Two prosecution witnesses related to the victim had been given up as unnecessary---One eye-witness did not claim to have seen the actual occurrence---Lady doctor had not noticed any mark of violence on .The body of the victim and the injury on the vaginal area, according to her could or could not be due to sexual intercourse."
15. Now the Forensic Science has been developed throughout the world as well as in this country and in order to collect corroborative piece of evidence in the shape of semen/blood, etc. Not only for blood grouping but also for DNA test to rule out every possibility of false implication of an accused person in a case as well as to prove the sexual charge in such-like cases to penalize a guilty person.
16. Unfortunately in the present case the evidence in the shape of P.W.4 Mst. Shah Jehan complainant/victim does not find any corroboration from the statement of P.W.5. Muhammad Hanif as both are contradicting to each other on material aspects and then subsequently medical evidence and later on report of Chemical Examiner which was inconclusive in the light of the observation of the Chemical Examiner as B the semen and the clothes of the victim were subsequently sent for blood grouping about which there is no evidence/report available on record.
If that test was conducted and it conducted why the report of Serologist was not brought on record a question which is not answered by the prosecution on the basis of evidence available on the record. Thus the evidence available on record is not sufficient to bring home the guilt of the appellant/accused.
17. Another aspect i,e, broken bangles also were shown secured by the Investigating Officer P.W.8 vide recovery memo Exh.PD but these pieces were never produced in court nor exhibited by the prosecution. The Chhurri (P1) although produced in court secured vide memo Exh.PF but it has no corroborative value in the given facts and circumstances of ID the case.
18. In the light of above discussion the prosecution was miserably failed to prove the charge under section 376, P.P.C. Against the appellant. Resultantly, while allowing this appeal the conviction vide judgment dated 31-8-2009 passed by the learned Additional Sessions Judge, Pindigheb, District Attock is hereby set aside. The appellant is E acquitted of the charge. He is directed to be released from Jail forthwith if not required in any other case.