Through this criminal appeal under Section 410, Cr.P.C. appellant Asim alias Hashim has challenged the vires of judgment dated 26.11.2015 passed by learned Additional Sessions Judge, Shahkot in case FIR No. 49, dated 13.02.2014 in respect of an offence under Section 376, PPC registered at Police Station Saddar Shah-Kot whereby he was convicted and sentenced as under:- Under Section 376. PPC Rigorous Imprisonment for ten years with fine of Rs. 10,000/-and in default thereof, to further undergo simple imprisonment for six months.
Benefit of Section 382-B of, Cr .P.C. is also given to the appellant.
2. The aforementioned case was registered on the complaint (Ex.P A) of Mst. Asma Bibi (PW-2) wherein she alleged that some unknown person had committed rape with her minor daughter namely , Alia aged 7/8-months on 13.02.2014 in her house situated at Jughian Karnalian. It was alleged that one Hashim (appellant) had visiting terms in her house. After registration of the case, the complainant got recorded her supplementary statement on 13.02.2014 before Irfan Gull, S.I./Investigating Officer (PW-9), showing her suspicion against the present appellant whereupon he was arrested on the same day and during investigation he admitted the occurrence.
3. Dr. Afia Sharif Chaudhary (PW-2) conducted medico-legal examination of victim Alia on 13.02.2014 at 11:15 a.m. and observed tears laceration with swelli ng of genetalia whole arterially and posteriorly . The hymen was ruptured with fresh bleeding. She kept her opinion pending with regard the rape till receiving report from paeds surgeon and gynecologist. The swabs were sent for chemical analysis of semen and DNA test. The victim was referred to 'Children Hospital, Lahore for paeds surgery and gynecologist.
4. Dr . Farhan Malik ( PW-5) conducted potency test of the appellant on 16.02.2014 and found him potent.
5. At the commencement of the trial, learned trial Court had framed the charge against the appellant to which he pleaded not guilty and claimed to be tried.
6. The prosecution produced 09-witnesses besides the report of Punjab Forensic Science Agency (Ex.DA). The appellant, in his statement recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C., nor produced any evidence in his defence.
7. Learned trial Court, upon conclusion of the trial, proceeded to convict and sentence the appellant, as stated above. Hence, this criminal appeal.
8. I have heard learned counsel for the appellant, learned Assistant District Public Prosecutor appearing for the State and perused the record with their able assistance.
9. Complainant Mst. Asma Bibi (PW-1) set the law in motion while stating that on the fateful day, her husband Muhammad Siddique left the house to earn livelihood at the brick-kiln, she herself left the house at 12:00 noon for getting fodder from the fields whereas her minor daughter namely , Alia aged about eight months was alone in the house. She returned to the house at about 01:00 p.m. and found her daughter smeared with dirt and blood. She washed her clothes, took her to the clinic of Dr. Rasheed, who advised to refer her to Sheikhupura or Lahore. She called her husband and after consultation took her daughter to Shah-Kot Hospital. The Medical Officer after medical checkup further referred her to Allied Hospital, Faisalabad. However , after short stay at Faisalabad, they shifted her again to Shah Kot, Hospital of their own and she reported the matter to the police showing suspicion against accused Asim alias Hashim for committing Zina with her daughter . Medical Officer of Shah-Kot Hospital, further referred her daughter in the Children Hospital, Lahore, where she remained admitted for seven days and on their return to home, one Ashraf son of Bashir came to them and told that he had seen the appellant committing sexual intercourse with the victim baby but he remained silent due to the apprehension of fight. He further told them that he apprehended the appellant at the spot, who beseeched pardon from him. The testimony of the complainant is nothing but hearsay and even said Ashraf neither appear before the police nor he was produced before the trial Court by the prosecution. The complain ant's deposition in that regard has no legal backing. The prosecution withheld Muhammad Ashraf and its non-production before the Court hit the provisions of Article 129(g) of Qanoon-e-Shahadat Order , 1984 that "had he been produced before the trial Court, he would have not supported the prosecution version."
10. The entire prosecution case depends upon extra judicial confession and medical evidence. Muhammad Bashir (PW-3) appeared before the trial Court stating that he was cutting fodder at his Dera, one Rafique and his brother were accompanied him. Accused Asim alias Hashim came there and disclosed that he had committed Zina with a girl and sought pardon. This statement was quite ambiguous having no date, time, place, mode and manner of the occurrence. The said witness neither specifically mentioned the name of the girl nor under what compulsion, he was going to confess his guilt. The sole statement of the said witness, which is otherwise incomplete remained un- corroborated from any independent source of evidence and does not inspire the confidence of this Court. I am surprised that how the trial Court came at the conclusion that the appellant was guilty of the offence. The extra- judicial confession is always weak type of evidence, which can only be relied upon, if it is corroborated from an independent and unimpeachable source. Though the medical evidence has confirmed the act of sexual assault with the victim yet it alone was not sufficient to raise finger towards any specific culprit especially when report of Chemical Examiner in that regard has been received with negative result. I have reason to believe that the evidence adduced by the prosecution is neither sufficient nor appeal to reason. The only irresistible conclusion is that the prosecution has failed to prove the charge against the appellant and, thus, I am not in agreement with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellant.
11. For what has been discussed above, the appeal in hand is allowed the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is directed to be released from jail forthwith, if not required to be detained in connection with any other criminal case.