' Additional Sessions Judge, Bhakkar on 25.9.2009 and, after having been. Tried in a case registered vide FIR No, 116 dated 02.10.2007 under Section 376, PPC at Police Station, Haiderabad, District Bhakkar was convicted and sentenced as follows:-- "Convicted under Section 376, PPC and sentenced to undergo ten years rigorous imprisonment with fine of Rs, 5000/- and in default whereof to further undergo one month simple imprisonment.
He was also extended the benefit of Section 382-B, Cr.P.C."
2. Complainant Mst. Razia Bibi (PW-09) submitted complaint (Exh.PA) before the police on the basis of which formal FIR (ExhPA/1) was chalked out on 02.10.2007 against Tauqeer Abbas and three unknown persons on the allegation that she was lawfully wedded wife of Abdul Rehman son of Moulvi Manzoor Hussain caste Karlu resident of Mahni and due to the dispute between the spouses she had been residing in the house of her brother, Zohaib. On 01.10.2007 at 05:00 p.m she was alone in the said house when appellant Tauqeer along with three unknown persons, who had muffled their faces, came there while armed with guns. Appellant Tauqeer Abbas forcibly caught the complainant and dragged her into the room while threatening her to. Done to death, upon which the complainant raised hue and cry. Appellant after taking her in the room outraged her modesty whereas the unknown three accused persons armed with deadly weapons guarded them outside.
Hereafter the appellant overpowered her and committed zina-bil-jabr with her. In the meantime brother of complainant Muhammad Zohaib and PW Azhar Hayat attracted the place of occurrence but the unknown accused persons stopped them by extending threats: In the meantime, the appellant fled away from the place of occurrence whereas the other co-accused persons also left the spot. The inhabitants of the vicinity also gathered there in the meantime and they also saw the accused persons going away from the place of occurrence.
3. The investigation saluted in guilt of the appellant by recommending his prosecution.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he 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 rase produced 11 prosecution witnesses.
5. Medical evidence was adduced through the statement of Lady Dr. Saima Pervaiz (PW08), who medically examined Mst. Razia Bibi aged 28 years, observed as under:-- GENERAL PHSYCIAL EXAMINATION ' No any sign of violence and intoxication. No any scare mark on face, neck or breast abdomen and thighs. No blood stains on whole body and no white stains on thighs. Vitals at examination are BP 130/ 80 pulse 90 per minutes, temperature 98 Pallor positive.
' According to her history full penetration and ejaculation confirmed. She was married with three children. No any surgical treatment previously.
' LMP was 27.09.2007. According to history bath being taken local washing of parts with hair removing cream before coming for examination.
CLOTH EXAMINATION ' Blood stains and some while stains were present on shalwar, shirt is teared off in front of breast. No blood stains and semen stains on shirt. No history of button los. No foreign material was present on shift.
LOCAL EXAMINATION ' On breast examination, no sign of injury, bleeding, discharged or stains present.
PELVIC EXAMIANTION ' On retraction of labia, hymen absent, no evidence of any injury, on medical side of labia majoria and manorial no any sign of injury.
DIGITAL EXAMINATION ' On digital examination, hymen absent, three fingers without any discomfort reached to posterior fornix of vagina.
SPECULUM EXAMINATION ' On speculum examination, no source of bleeding and oasis was closed, no semen collected in posterior fornix of vagina.
SPECIMEN STAINS ' Clothes, some blood stains and white stains in the middle and front of shalwar, Shalwar is teared of in front. Swabs are collected.
' SWA1.BS
1. External. Three swa bs were taken from 1 medical aspect of thighs. 2 swabs from labia manorial. 3 swa bs from introits.
2. Internal swa bs. 1 from vagina. 2 from external oz. 3 from posterior fornix of vagina. Swabs were taken and sent to Chemical Examiner, Rawalpindi for detection of semen and sent to Chemical Examiner, Lahore for detection of DNA through police.
' She further deposed that according to report, all the swabs and shalwar were stained with semen.
Qameez was also stained with semen. According to report Exit.PC/1, all the above mentioned swabs and shalwar were stained with semen. Qameez was also stained with semen. She was of the opinion that that the victim was subjected to sexual intercourse."
6. On 8.10.2010, Dr. Abid Khan, M.0 (PW07) medically examined the appellant and observed that there was nothing that the examine was not able to perform sex. He further stated that the samples for semen analysis and blood (with coagulant) and (without coagulant) were sent.
7. Afterwards the statement of the appellant under Section 342, Cr,P.61. Was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, opted to adduce evidence in his defence but not to appear as his own witness under Section 340(2), Cr.P.C.
8. The appellant in reply to a question "why this case against you" answered as follows: "The case is false against me. So far as the PWs are concerned, they are chance witnesses and interested and also inimical towards me. Actually, on 12/13.01.2006 (midnight) the brother of complainant of this case Zohaib Khan, Ilyas and Sarfraz accused committed zina with my sister Mst. Rukhsana Parveen, upon which my sister Mst. Rukhsana Bibi got registered a case No, 06 dated 14.01.2006, u/S. 10/16 of Zina (Enforcement of Hudood) Ordinance, Police Station Haiderabad, thereafter Zohaib and others accused persons were acquitted from the case due to compromise outside the Court but grudge grouse remained in the heart of complainant party.
' On 01.10.2007 at about 04; p.m my sisters Mst. Rukhsana Bibi and Farzana Bibi were coming to her house, on the way Mst. Razia complainant of this case and her brother Zohaib beaten my sister Rukhsana badly. Mst. Rukhsana got registered a rapt .No, 20 dated 01.10.2007 at P.S Haiderabad.
Mst. Rukhsana my sister was also medically examined by the police, due to this spite, a false case got registered against me.
' The sample of Mst. Razia Bibi as well as myself were sent to the laboratory for analysis and I have excluded from the charges of Zina by DNA Test report Exh.DA."
9. The appellant produced documents in his defence as (Exh.DA) to (Exh.DF) and closed his defence evidence.
10. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned op-city by the learned trial Court. Hence, the appeal.
10. To this appeal, it has been contended that the victim was a married lady; woman medical officer had observed her Hyman absent and penetration of three fingers without discomfort whereas the report of seminal swa bs is positive but the report of DNA profile does not involve the appellant in this case, this fact alone is sufficient to extend the benefit of doubt in accepting the instant appeal.
11. Learned DPG has opposed the submissions that searching cross-examination was made by the learned counsel for the appellant but nothing could be elicited on the record favouring the appellant; penetration is sufficient to constitute offence of zina; the victim stood tested on the touch stone of cross-examination and her medical examination was got conducted in a posthaste way after the incident which militates the circumstances of fabrication, in these circumstances, the prosecution has ably proved its case against the appellant, thus, the appeal may be dismissed.
12. Heard. Record perused.
12A. Leaving to reiterate Iliad of the prosecution and following the principle of law applicable since yore that a slightest doubt if reasonably arises has to be extended necessarily to the accused and doubts may not be myriad for benefit. Now in the instant case scientifically born a benefit of doubt through the DNA report Exh.DA is extended to the appellant. Relevant paragraph of the same is reproduced as under:- "CONCLUSION ' An unknown male individual is the source of DNA found in the sperm fraction of items 3.1.4 # 3.1.5 (stains from shalwar of victim).
' Accused Tauqeer Abbas s/o Sardar Bakhsh (item 6.1) is excluded for being the source of DNA found in the sperm fraction items 3.1.2.4 & 3.1.5 (stains from shalwar of victim).
' The vaginal swa bs (items 1.1 &1.3) and stains from shalwar of victim (items 3.1.1., 3.1.3) did not general any DNA profile, therefore, no comparison could be made of these items with the DNA profile of accused Tauqeer Abbas s/o Sardar Bakhsh (item 6.1).
13. The victim was a married lady. About her private parts it has been indisputability noted that she was customary to conjugality tit and the Court hates parti pris and follow the law though detestability id is be attached to the incident. The statement of the victim in absence of any independent corroboration is disbelieved.
14. For what has been discussed above, illatively the Court is, convicted that the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doub LAI Its, instant appeal is accepted; impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges imputed against' him The appellant is on bail. His surety is discharged of the liability.