Appellant Muhammad Sajid challenged his conviction and sentence through this appeal. He was tried by learned Additional Sessions Judge, Shujabad in case FIR No. 63 dated 12.03.2015 registered under Sections 376,51 1, PPC at Police Station Sadar Shujabad District Multan vide impugned judgment dated 11.05.2017. At conclusion of trial, he was convicted and sentenced as under: Convicted under Sections 376/51 1, PPC and sentenced to rigorous imprisonment for seven years and imposed fine of Rs. 70,000/-. In case of non-payment of fine to further undergo one year S.I.
Benefit of Section 382-B, Cr .P.C. was extended to appellant.
2. As per prosecution on 12.03.2015 at about 5/6 p.m. complainant heard noise of weeping on which he alongwith Fakhar Hussain and Muhammad Shahbaz reached at the spot and saw that Sajid appellant was trying to commit rape with Mst. Shahzadi, neice/Bhanji of complainant after removing shalwar of the victim as well as his own, who seeing them succeeded to decamp after lifting his shalwar . The trouser and body of the victim was smeared with filthy material. The victim was brought to house mother of the victim gave her milk and washed her body .
3. After investigation, report under Section 173, Cr.P.C. was submitted before the trial Court. Charge was framed against appellant, to which he denied and claimed trial. Thereafter , prosecution evidence consisting of PW01 to PW-06 was recorded. Statement of appellant was also recorded under Section 342, Cr.P.C., and at conclusion of trial, appellant was convicted and sentenced as mentioned above, hence, this appeal.
4. Contention of learned counsel for appellant is that appellant has been falsely implicated in this case and that the PWs could not remain consistent while lacing cross-examination; that there are material contradictions in the deposition of PWs; that none of the PWs was present at the spot nor witnessed the occurrence; that the prosecution had failed to prove charge against appellant but learned trial Court convicted him on the basis of surmises and conjectures ignoring the facts established on record.
5. Learned Deputy Prosecutor General assisted by learned counsel for complaina nt has supported the impugned judgment, opposed this appeal and prayed for its dismissal.
6. Heard. Perused.
7. Precise story narrated by PW-1/complainant Muhammad Iqbal, uncle of the victim Mst. Shahzadi is that his niece aged 5/6 years was playing outside the house, they heard weeping of girl on which he alongwith PWs rushed towards the place and saw that appellant after removing trouser of victim and his own, was trying to commit rape with her but on seeing them, he fled away from the scene.
8. To prove the charge against appellant, prosecution produced complainant Muhammad Iqbal (PW-1), Fakhar Hussain (PW-2) amongst the cited witne sses whereas Shahbaz PW was produce d, his examination-in-chief was recorded as PW-3 but lateron he was given up by the prosecution. Both PWs have stated in cross-examination that the occurrence had taken place at a distance of one acre from house of complain ant. It is thus unbelievable that they would hear shrieks of a minor from such a distance as it is their case that they were present in the house and they heard shrieks outside the house where the minor was playing. Even otherwise, PW-1 is uncle of the victim and nobody from parents of the victim has come-forward to support the stance of PW-1. PW-2 even otherwise, is not resident of the locality . PW-2 has deposed that when they saw the appellant, the victim was in his grip and he was holding her from her arms, why they did not apprehended him at the spot or at least chased him, is not explained.
9. Interesting to note here is that evidence of cited witness i.e. PW-3, has been withheld. His examination-in-chief was recorded but thereafter , he was given up by the prosecution. PW-5 the investi gator has stated that he had not shown the house of the victim in the site plan.
10. Coming to medical evidence, Dr. Saima Batool, WMO, (PW6) staled that no injury was found on the body of victim like tear laceration bruise and abrasion on the private parts. No rapture of hymen, no evidence of bleeding or staining of blood, no evidence of seminal stain. She opined that there was no physical sign of penetration observed at the time of examination. But report of PFSA only suggests presence of presumptive seminal material on all items sent for analysis.
11. The ocular account furnished by witnesses and medical evidence does not inspire confidence being intrinsically weak. It is highly unsafe to maintain conviction recorded against appellant on such type of evidence in a case of serious nature. Law is well settled that it is duty of the prosecution to prove charge against accused beyond reasonable doubt. Benefit of doubt will always go to the accused.
12. For the reasons recorded above, this appeal is allowed conviction and sentence recorded by learned trial Court against appellant through impugned judgment, is set aside. Appellant Muhammad Sajid is acquitted of the charge by extending benefit of doubt. He is in jail, be released forthwith if not required in any case.