' Muhammad Asif @ Bhola, appellant in the appeal, as mentioned above, has impugned the punishing judgment handed down by the learned Additional Sessions Judge, Kasur dated 14.04.2016 and after having been tried alongwith his co-accused Moazzam in a case registered vide FIR No, 654 dated 12.10.2013 under Section 376, PPC at Police Station, Khudian, District Kasur was convicted and sentenced as follows: "Under Section 376, PPC and sentenced to undergo fourteen years-rigorous imprisonment with fine of Rs, 1,00,000/- and in default whereof to further undergo six months simple imprisonment. He was also extended the benefit of Section 382-B, Cr.P.C."
' Whereas the complaint has filed recession petition for enhancement of sentence of the appellants.
2. Complainant Ahmad Ali (PW-02) got recorded his statement Exh.PB on the basis of which formal FIR Exh.PC was chalked out. The facts in-curt detailed by the complainant in Exh.PB are that he was laborer by profession and he alongwith his wife had gone to see his son Muhammad Ramzan at Lahore who met with an accident of dacoity while during the intervening night of 08.10.2013 at about 01:00 a.m. (night) his daughter Mst. Sobia Bibi and two minor children were present in his house in village Heemaywala, Kasur, when appellant trespassed his house and took his daughter into fields where he committed zina with her while his co-accused Moazzam remained standing two acres away. His daughter Mst. Sobia returned home at the time of morning Azan wela and informed her uncle Ahmad Ali about the occurrence and also informed to the complainant, on his return to home.
3. During the investigation, the prosecution case was found doubtful by the investigation officer, thus, a report under Section 173, Cr.P.C. Was submitted before the learned trial Court by putting the names of the accused in Column No, 2 of the report.
4. Learned trial Court after observing all the pre-trial codal formalities, summoned the appellant and his co-accused, indicted them to which they pleaded non-culpabilis and claimed trial.
Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution to prove its case produced six prosecution witnesses.
5. Medical evidence was adduced through the statement of Dr. Farooq Ahmad Cheema, Medical Superintendent, THQ, Hospital, Chunian as secondary evidence on behalf of Lady DrArfana Ghafoor, WMO, THQ, Chunian who stated that on 15.10.2013 he was posted at THQ Chunian as M.S. Lady Dr. Irfana Ghafoor, WMO was working under his supervision at that time. He was acquainted with the writing and signature of Lady Dr. Irfan Ghafoor and could verify the same. On the said date Lady Dr. Irfan conducted medical examination of Mst. Sobia Bibi and issued MLC No, 1350/13 which was in her hand writing. MLC Exh.PF was true carbon copy issued by WMO Dr. Irfana Ghafoor. Original record of said MLC was also available with him on that day. Signature of Dr. Irfana Ghafoor was Exh.PF/1 whereas application for medical examination of victim was Exh.PG/1. He identified and verified the writing and signature of the said medical officer. The said medical officer worked under his supervision for about two years. The said Medical Officer left the service and in those days he was not known about her whereabouts.
6. Afterwards the statement of the appellant under Section 342, Cr.P.C. Was recorded, in which he denied and controverted all the allegations leveled against him by the prosecution and professed his innocence. He, however, neither opted to adduce evidence in his defence nor not to appear as his own witness under Section 340(2), Cr.P. C.
7. The appellant in reply to a question "why this case against you" answered as follows: "Infact no such occurrence was took place. The brother, Bhabi and one relative of the complainant got executed pro-note worth Rs, 50,000/- each in favour of my brother Boota who filed suit, for recovery u/O. 37, CPC before learned ADJ, Kasur due to this reason the complainant got registered instant false case against me."
8. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned op-city by the learned trial Court while his co-accused Moazzam was acquitted of the charges. Hence, the appeal as well as recession petition.
9. Learned counsel for the appellant has submitted that inexplicable four days delay was caused by the prosecution in reporting the matter to the police; except the statement of victim Mst. Sobia Bibi, no other evidence exists against the appellant while PW.02 and PW.03 do not claim to have seen the incident of commission of zina; the story that the co-accused since been acquitted remained standing at a distance of two acres from the place of zina appears irrational; moreso that the statement of the victim has not been corroborated by her medical evidence, therefore, the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubts.
10. Learned DPG assisted by the learned counsel for the complainant has argued that the learned trial Court has come to the right conclusion qua the acquittal of co-accused who since did not commit'zina-bil-jabr with the victim and qua him the prosecution story appears doubtful but so far as the case of the appellant is concerned, no doubt exists in the prosecution case to be extended to him, therefore, instant appeal may be dismissed.
11. Heard. Record perused.
12. The alleged occurrence took place on 08.10.2013 when Mst. Sobia Bibi, daughter of complainant Ahmad Ali was present in the house alongwith two minors. At 01:00 a.m. (night) Muhammad Asif @ Bhola, appellant entered the house, forcibly took Mst. Sobia to the fields whereas he committed zina bil-jabr with her while Moazzam, co-accused remained watch dog at two acres distant. The incident was narrated to the complainant by Amanat Ali, PW and her daughter. The matter was reported to the police on 12.10.2013 explaining the delay that the appellant's party kept on beseeching to avoid criminal prosecution. Ultimately the case was registered on 12.10.2013 while on 15.10.2013 Mst. Sobia Bibi was medically examined by WMO, DHQ, Hospital, Chunian.
13. To prove the case the prosecution produced PW-01 Mst. Sobia Bibi, victim, PW-02 Ahmad Ali, her father/complainant and PW 03 Amanat Ali another witness. PW-04 Muhammad Riaz, AST is of formal nature whereas PW-05 is the investigating officer and PW-06 is Dr. Farooq Ahmad Cheema, examining as secondary evidence on account of non-availability of WMO, Dr. Irfana Manzoor.
During the investigation the clothes worn at the time of incident were also handed down to the police, were taken into possession accordingly through a memo. During her cross-examination, the victim had admitted that when was being taken to the fields, she raised hue and cry but nobody came there and saw the incident. She also alleged that she was dragged to the fields. This fact alone is sufficient that sole statement of the victim remains in the field. Now question is to be assessed whether her statement has been corroborated by the medical evidence or not. Though the examining WMO did not appear before the learned trial Court, but MLR of the victim Exh.PF has been gone through. The same reveals that Hyman of the victim was absent and vagina admitted two fingers tightly. Her two swa bs were taken and sent to Forensic Science Agency, Punjab, Lahore for DNA, test. It was also observed by the doctor that no bruise, no laceration even no other sign of violence was seen on her whole body from head to toe. Her age was recorded 26 years. Had she been dragged? Her body would have some signs of violence, even at least her worn clothes would tell about this thing but the memo of recovery of parchat Exh.PA does not prove this fact. The report of the vaginal swa bs did not exist, in this way, medical evidence does not prove the fact of commission of zina by the appellant with the victim.
14. For what has been discussed above, the Court is of humble opinion that the prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubts, thus, impugned judgment rendered by the learned trial Court is set aside and the appellant by accepting the instant appeal and by extending him the benefit doubt is acquitted of the charges imputed against him. He is in jail, be set at liberty in a trice provided not required in any other case.
15. So far as Crim. Revision No, 553 of 2016 is concerned, in view of acceptance of appeal of the appellant, this recension petition stands dismissed being shorn of reasons.