' ZAHEER-UD-DIN KAKAR, J.---The pauper appellant Sabir alias Sabir Hussain son of Raees Moula Bakhsh has challenged the validity of the judgment dated 12th March 2016 (the "impugned judgment"), passed by the Additional Sessions Judge, Awaran at Khuzdar (the "trial Court"), by means of instant Criminal Jail Appeal, sent through Superintendent, Central Jail, Khuzdar, whereby he was convicted and sentenced under Section 376 of the P.P.C. To suffer R.I. For twelve (12) years and to pay a fine of Rs,25,000/- (Rupees twenty-five thousand only), in default whereof to further undergo S.I. For six (06) months, with benefit of section 382-B, Cr.P.C.
2. Precisely stated facts of the case, as per FIR (Ex-P/7-B) is that on 1st August 2015 at about 12:00 (noon), the daughter of the complainant namely Safia, aged about 8 years, went to the house of her neighbor for bringing water, where Sabir Hussain caught hold her and forcibly committed Zina with her. On hearing hue and cry of Safia, her mother reached there on time and brought her at home in semiconscious condition. Later on she was taken to hospital for treatment.
3. After registration of the FIR, investigation of the case was entrusted to PW-7 Muhammad Afzal SI, who proceeded to the place of occurrence, prepared site plan Ex-P/7-A, recorded statements of the witnesses under section 161, Cr.P.C., arrested the nominated accused, produced FIR as Ex-P/7-B, after completion of investigation sent the accused to judicial custody and prepared challan as Ex- P/7-C.
4. On the stated allegation, a formal charge was framed and read over to the appellant on 11.9.2015, to which he pleaded not guilty and claimed trial. To prove the acquisition, the prosecution produced seven witnesses. PW-1 Bashir Ahmed is complainant of the case, who reiterated the contents of Fard-e-bayan Ex-P/1-A. PW-2 Safia, the alleged victim. PW-3 Jan Bibi, is mother and PW-4 Faisal is brother of the alleged victim. PW-5 Dr. Zakia LMO and PW-6 Dr. Ahmed Ali, Medical Officer, conducted medical examination of the victim and appellant, respectively, and issued MLCs Ex-P/5-A and Ex-P/6-A. PW-7 Muhammad Afzal, is the Investigation Officer of the case. Thereafter, the prosecution closed its side.
5. The accused was examined under sections 342 and 340(2) of the Cr.P.C. Wherein he denied the prosecution allegation. He also produced one Lal Muhammad as DW-1 in his defence.
6. At conclusion of the trial, the trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above.
7. Learned counsel for the pauper appellant contended that the impugned judgment of conviction is result of misreading and non-reading of the evidence; that the prosecution evidence was not appreciated in its true perspective and that the PWs 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 medical report was negative and no penetration was proved. The appellant has falsely been implicated in the instant case; that even the FIR is lodged with unexplained delay of three days. Finally, he prayed for setting aside the impugned judgment and acquittal of the appellant.
8. On the other hand, learned DPG vehemently opposed the appeal and defended the impugned judgment and stated that the victim specifically implicated the appellant with commission of offence. Lastly, he prayed for dismissal of the appeal, keeping in view the gravity of the offence.
9. We have heard learned counsel for the parties and have gone through the record.
10. Firstly, taking up the question as to whether the provisions of section 376, P.P.C. Are applicable to the facts and circumstances of the case, we are of the view that a perusal of sections 375 and 376, P.P.C. Is inevitable, which for convenience of reference is reproduced herein below:-- "375. Rape. ---A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,-
(i) against her will; ............
(ii) without her consent;
(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt;
(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or .
(v) with or without her consent when she is under sixteen years of age.
376. Punishment for rape.---(1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty five years and shall also be liable to fine. "
11. A bare perusal of the afore-quoted sections makes it clear that to attract provisions of section 376, P.P.C., there should be rape with a woman and to establish as to whether the rape was committed, penetration is essential, but bare reading of the Medico Legal Certificate Ex.P/5-A issued by the PW-5 Dr. Zakia negates the contents of the FIR. For convenience, the statement and report of PW-5 is reproduced herein below:-- "That on 1.8.2015 I was performing my duty as Lady Medical Officer at DHQ Hospital Khuzdar, on the same day at about 8:00 p.m. One Safia daughter of Bashir Ahmed, age 10 years, was brought by her mother for medical examination. I medically examined the Safia and my observations are as under:-- ON EXAMINATION.
Whole body is clear, no any bruise seen.
' .Vulva-vagina clear, OR Clear. Hymen intact. No any discharge.
' On P/R Examination.
' Rectal area, mild redness and one fresh scratch mark about 1 cm.
' Mother washed her body brought Shalwar, so sent for examination (stained) forensic report.
' Thereafter, 1 issued medical certificate/MLC No,4 dated 1.8.2015. I produce the same as Ex-P/5-A."
12. Before going to further, it is necessary to mention here that Lyon in his Medical Jurisprudence, 10th Edition, states at page 446, while dealing with the signs of loss of virginity.
"There are obviously only available as evidence of rape in cases in which the female was Virgo intact previous to the commission of the offence. Rupture or laceration of the hymen is the chief sign of defloration available as evidence of rape, the various other signs of virginity, being, as a rule, not lost as consequence of one intercourse."
13. Admittedly, PW-1 Bashir Ahmed complainant of this case, who happens to be the father of the victim namely Safia, is not an eye-witness and he has narrated whatever he heard from Naseer Ahmed. PW-2 Safia, is the victim of this case, who appeared in the witness box and supported the prosecution versions. She claimed that the appellant forcibly committed rape with her. The statement of the victim is negated by the medical evidence because as per statement of PW-5 Dr. Zakia, Lady Medical Officer, the hymen intact and she only observed mild redness and one fresh scratch mark about 1 c.m on rectal area. Statement of PW-5, LMO, shows that Shalwar of the victim was sent for forensic report but perusal of the record shows that the prosecution did not produce any report from Forensic Science Laboratory. Admittedly, no bleeding occurred at the time of occurrence. If a girl of 10 years was forcibly raped by a young boy of 18/19 years, as per prosecution version, there must have been symptoms of the same on the body of the victim, but as per MLC no marks of violence were found on her body. Mere redness at Rectal area as deposed by the Medical Officer could be self suffered. 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 FIR. 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 medical examined.
14. After the careful analysis of the evidence on the record, it is found that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt, because the ocular account is completely negated by the medical evidence. There is no plausible explanation for delay in lodging the FIR and thus, consultation and deliberation cannot be ruled out. The PWs have made dishonest improvements while appearing in the witness box before the trial Court. In the light of the medical report, the entire story of the victim and the complainant becomes doubtful. The conviction awarded to the appellant under section 376, P.P.C. Is not sustainable in the eye of law.
15. In view of the above discussion, the appeal is accepted, the appellant Sabir alias Sabir Hussain is hereby acquitted of the charge by setting aside the impugned judgment dated 12.3.2016 passed by the Additional Sessions Judge, Awaran at Khuzdar. The appellant is in custody, be released forthwith if not required in any other case.