' AGHA RAFIQ AHMED KHAN, C.J.---This appeal has been moved by Muhammad Ramzan alias Pappu to impugn judgment dated 6-4-2010 delivered by the learned Additional Sessions Judge, Depalpur, District Okara, whereby the appellant was convicted under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as 'the Ordinance') and sentenced to four years rigorous imprisonment with fine of Rs.10,000, or in default thereof to further undergo one month simple imprisonment with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case arisen out of F.I.R. Dated 30-5-2005 registered at police station Hujra Shah Muqeem, District Okara are that, on 27-5-2005 accused Ramzan alias Pappu by scaling over the wall entered the room and caught hold of Mst. Shahnaz Bibi and thereafter Ramzan alias Pappu after breaking string of Mst. Shahnaz Bibi's shalwar committed rape with her. On her resistance and alarm witnesses attracted to the place of incident and on the arrival of the P.Ws., appellant/accused Muhammad Ramzan alias Pappu fled away leaving Mst. Shahnaz Bibi who narrated the occurrence to Muhammad Yasin who moved application (Exh.PA) for registration of the case and on the basis of which the present case was registered against the appellant/accused.
3. The case was investigated by Muhammad Ashraf Sub-Inspector. He inspected the place of incident; recorded statements of the witnesses under section 161, Cr.P.C.; prepared rough site plan Exh.PD and got the victim Mst. Shahnaz Bibi medically examined. He arrested the appellant/accused on 2-6-2005; got conducted the potency test of the accused and after completion of the investigation, he prepared incomplete challan and submitted the same against Muhammad Ramzan alias Pappu. Appellant/accused.
4. The learned trial Court framed charge against the appellant/accused Muhammad Ramzan on 10-10-2005 under section 10 of the Ordinance, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined eight witnesses. The gist of their evidence is as under:--
(i) P.W.1 Muhammad Yasin is complainant of the case. He endorsed the contents of his complaint Exh.PA.
(ii) P.W.2 Mst. Shahnaz Bibi, who is the victim, has supported the prosecution case.
(iii) P.W.3 Muhammad Zahid being eye-witness of the occurrence deposed regarding his presence at the time of occurrence, commission of rape with Mst. Shahnaz Bibi by the appellant/accused and his fleeing away from the place of incident.
(iv) P.W.4 Muhammad Anwar Constable received a sealed parcel from the Moharrar, which he deposited in the office of Chemical Examiner, Lahore.
(v) P.W.5 Muhammad Amin constable received an information on the basis of which he recorded the F.I.R. (Exh.PA/1).
(vi) P.W.6 Lady Doctor Talat Farzana medically examined the victim Mst. Shahnaz Bibi and observed that her vulva and vagina were normal and healthy; hymen scar was old and healed; no fresh scar; no bleeding and no discharge was coming from the introitus which admitted two fingers and there was no sign of violence.
(vii) P.W.7 Dr. Sagheer Ahmad conducted potency test of appellant/accused Muhammad Ramzan alias Pappu and found him fit to perform sexual intercourse.
(viii)P.W.8 Muhammad Ashraf Sub-Inspector carried out the investigation. His role has been discussed in para No.3 supra.
' Ghulam Mehdi Sub-Inspector was summoned as C.W.1 on the application of the appellant/accused. He deposed that on 20-7-2005 an application submitted by the appellant/accused was marked to him for verification of the investigation, upon which he called the parties. He also stated that Ghulam Sarwar alias Muhammad Sarwar an eye-witness of the incident, who is also brother of the complainant, besides other appeared before him and submitted his affidavit Exh.C.W.1/2 to the effect that no such occurrence has taken place. According to this C.W., the appellant/accused was innocent.
6. The learned trial Court thereafter examined the appellant/accused under section 342, Cr.P.C. On 21-10-2009. He inter alia, pleaded his innocence. In reply to the question "Why this case against you and why the P.Ws. Deposed against you?" the appellant/accused stated as follows:-- "Muhammad Yaseen complainant who is the husband of Mst. Shahnaz Bibi alleged victim is inimical to me due to a dispute over canal water and theft of my goats. Mst. Shahnaz Bibi wife of complainant is not a woman of good moral character, due to that grudge the complainant by fabricating a false story, had lodged the instant case against me. The P.Ws. Are closely related to the complainant. They have deposed against me falsely. I am innocent".
' The appellant/accused did not make his statement on oath as provided under section 340(2), Cr.P.C, nor did he produce any evidence in his defence.
7. I have heard learned counsel for the appellant and learned DPP for the State, and have gone through the material available before me.
8. The prosecution story from the face of it appears to be improbable as there is inordinate delay of three days in lodging the F.I.R. According to the complainant, the incident had taken place on 27-5- 2005 at about 11/12 hours noon time but the F.I.R. Was lodged 30-5-2005. The explanation given by the complainant is not convincing. Rape was allegedly committed by the appellant with the wife of the complainant but he kept mum for three long days. The natural course would have been that he should have immediately proceeded to the police station for lodging the F.I.R.
9. According to victim Mst. Shahnaz Bibi, she was sleeping in the room at about 11 or 12 noon when accused tress passed and committed Zina-bil-Jabr with her and at that time two witnesses namely Muhammad Zahid and Muhammad Tufail came inside the room and saw the appellant committing rape with the victim but interestingly the appellant ran away from the place of incident by scaling over the wall in presence of three adult persons. The prosecution story is unbelievable and the witnesses are related to the complainant. No person from the Mohallah has either witnessed the incident or heard about it as nobody has come forward to give evidence. According to the victim. She had fallen on the cot and during scuffle with the appellant her clothes were torn and she had received abrasions and that she had shown those abrasions to the lady doctor at the time of medical examination. The victim has further stated that her clothes were stained with semen which she produced to the police. Lady doctor Talat Farzana (P.W.6) had negated the story of the victim by stating that she had no fresh scar on her body and no sign of violence was present.
Her clothes were clean and were neither torn nor stained with semen. According to court witness Ghulam Mehdi Sub-Inspector, who had investigated the crime, at first instance had deposed that he had summoned the parties at the police station and besides others Ghulam Sarwar, an eye- witness who is brother of the complainant, appeared and submitted his affidavit that neither any such occurrence had taken place nor he had witnessed the same. According to him, 7/8 other persons had also submitted their affidavits to the effect that no such occurrence had taken place, therefore, he found the present appellant innocent.
10. Keeping in view the above discussed evidence and reasons, I am of the considered opinion that the prosecution had miserably failed to prove the charge against the appellant and he was wrongly convicted and sentenced by the learned trial Court, therefore, this appeal is allowed.
Conviction and sentences awarded to appellant Muhammad Ramzan by the learned Additional Sessions Judge. Depalpur. District Okara. Vide judgment dated 6-4-2010. Are set aside and he is acquitted of the charge by giving him the benefit of doubt. He is on bail, his bail bond stands discharged and the sureties absolved.
11. These are the reasons for our short order of even date.