' CH. MUHAMMAD YOUNIS, J.--The appellant has assailed the judgment dated 30-7-2011 passed by Ch. Muhammad Tariq Javed, learned Addl: Sessions Judge Rawalpindi, who charged the appellant along with the co-accused under sections 376/511, P.P.C. And convicted the appellant only under section 354, P.P.C. And sentenced him to 2 years' R.I. With fine of Rs,30,000 and in case of default of payment of fine the appellant was to further undergo' S.I. For 2 months.
2. The learned counsel for the appellant has challenged the sentence of the appellant on the grounds that the co-accused Wasim to whom the same role was attributed was acquitted on the basis of same evidence; that the impugned judgment of conviction is result of misreading and non-reading of evidence; that the prosecution evidence was not appreciated in its true perspective and that the P.Ws. Have made dishonest improvements in their statements made before the Court. Moreover, the ocular account was not corroborated by the medical evidence. The learned counsel argued that the DNA report was negative. The report of Chemical Examiner in respect of the vaginal swa bs was also negative. No penetration was proved. The appellant was falsely implicated in this case along with the co-accused due to a dispute with the complainant in front of whose house the appellant and the co-accused used to play cricket. No recovery of any pistol was effected from the appellant and the statements of the victim and the eyewitnesses were recorded with a considerable delay of 22 days. Even the F.I.R. Was lodged with an unexplained delay of 7 days. The appellant was acquitted under sections 376/511, P.P.C. But at the same time he was illegally convicted under section 354, P.P.C. In spite of the fact that no offence was made out against him. The learned counsel has referred to PLD 1997 SC 515 "Rehmat alias Rehman alias Waryam alias Badshah v. The State", 1993 SCM R 417 "Ashiq Hussain v. The State", 2008 SCM R 1221 :'Ghulam Qadir and 2 others v. The State", 2008 YLR 199 (Lahore) "Muhammad Akram v. The State", 2010 YLR 2115 (Lahore) "Muhammad Saleem v. The State and another" and 2010 PCr.LJ 1296 (Lahore)
"Rizwan alias Abu-Bakar v. The State" in support of his arguments.
3. The complainant did not turn up in spite of service.
4. The learned D.P.G. Has vehemently opposed the appeal and argued that although the report of the Chemical Examiner and the DNA was negative in respect of the vaginal swabs but semen stains were found on the "Shalwar" of the victim. However, he conceded that no report about semen grouping was ,available on the record favouring the prosecution. The learned D.P.G. Argued that statement of the victim Shahina and her cousin Asad the eye-witness of the occurrence was recorded after 11 days. The delay was not fatal to the prosecution case. The learned D.P.G. Prayed for dismissal of the appeal keeping in view the gravity of the offence.
5. 1 have considered the arguments advanced from both the sides.
6. Admittedly, P.W.1 Mehrban complainant of this case who happens to be the father of the victim Shahina is not an eye-witness and he has narrated whatever he heard from his daughter. P.W.2 Shahina Bibi is the victim of this case who appeared in the witness box and supported the prosecution versions. She claimed that the appellant and the co-accused forcibly committed rape with her one after the other. At the time of occurrence she made a noise which attracted her cousin Asad P.W.3 who witnessed the occurrence. P.W.3 Asad Mehmood claimed to have witnessed the occurrence however in cross-examination he was confronted with his statement under section 161, Cr.P.C. And several improvements were found to have been made by him. So the ocular account in this case comprises the evidence of the victim as well as her cousin Asad. The victim has not levelled the allegations against the appellant and the co-accused for only having made an attempt to commit rape with her. She deposed in cross-examination that both the accused had committed rape with her one by one and they had discharged. The statement of the victim is negated by the report of the chemical examiner and the medical evidence because as per statement of P.W.5 Dr. Sadia Naeem WMO the hymen was completely intact and she only observed redness in the posterior fourchette. The report of the Chemical Examiner Exh.PC also does not support the prosecution according to which only a part of "Shalwar" was stained with semen and it may be kept in mind that she was examined after 7 days and not immediately after the occurrence. According to this report the vaginal swabs were not found to be stained with semen so in this way the medical evidence completely negates the version of the victim, complainant and the eye-witness Asad. Admittedly, no bleeding occurred at the time of occurrence. If a girl of 15 years was forcibly raped by 2 young boys as per prosecution version there into have been symptoms of the same on the body of the victim but no marks of violence were found on her body.
Mere redness as deposed by the medical officer could be self suffered. The DNA report Exh.PG and Exh.PG/1 also did not support the prosecution version. From the evidence on the record it is established beyond any shadow of doubt that no penetration took place as the hymen of the victim was found to be completely intact. This fact negates the entire story of the victim and the complainant as narrated in the F.I.R. It was a serious matter so there was no occasion for the complainant and the victim not to report the matter immediately to the police and get the victim medically examined. The learned trial Court concluded that even no attempt to commit rape was established. The learned trial Court has convicted the appellant under section 354, P.P.C. Just presuming some facts. When the version of the victim was negated by the medical evidence the entire case against the appellant became doubtful. Even on the same evidence the co-accused Wasim was acquitted of the charge against him in spite of the fact that according to the F.I.R. As well the statement of the victim he also committed rape with the victim. After the careful analysis of the evidence on the record it is found that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The ocular account is completely negated by the medical evidence. There is no plausible explanation for delay in lodging the F.I.R. And recording of the statements of the witnesses with an inordinate delay. The P.Ws. Have made dishonest improvements while appearing in the witness box before the learned trial Court. In the light of the DNA report and that of the Chemical Examiner the entire story of the victim and the complainant becomes doubtful. The conviction awarded to the appellant under section 354, P.P.C. Is not sustainable in the eye of law so extending the benefit of doubt the appeal is accepted and the appellant is hereby acquitted of the charge by setting aside the judgment dated 30-7-2011. He is already on bail so he as well as the surety shall stand discharged of their liability.