1. ' Abid Itussain along with Razia wife of Iftikhar, Iftikhar, Munir Ahmad, Mulazim Hussain and Khadim Hussain were tried for offence, under sections 11 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The other five accused persons were acquitted but Abid Hussain was convicted under section 10(3) of the Ordinance only and sentenced to 6 years' R. I., 15 stripes and Rs, 1,000 as fine, in default of which he was directed to undergo R. I. For a further period of 6 months.
2. ' The prosecution case according to the F. I. R. Dated 4th of February, 1980 is that on the 1st of February, 1980 at about sleeping time, Mst. Sattan and his father Iqbal were present in tlfeir house when Mst. Razia wife of Iftikhar came there and took Mst. Sattan along-with her for easing themselves. Mst. Sattan did not return and when Iqbal went to the house of Razia, he found that it was locked. He was informed during the search by Khadim- Hussain and Jehangir (both not produced) that Mst. Sattan was seen by them accompanying Razia, Munir, Khadim Hussain, Mulazim Hussain and Abid Hussain and all of them were going towards the house of Mulazim Hussain, Iqbal had been trying that Mst. Sattan may be restored to him. This was promised by Mst.
3. Razia and ultimately the accused party restored her to bim on the 3rd of February, 1980.
4. ' Mst. Sattan was medically examined on the 5th of February, 1980 by Lady Doctor, Nafees Akhtar, W.
5. M. O. Who found that her hymen was torn and the tears were old and healed. There were no marks of injuries or contusions on her body orprivate parts. The vagina admitted the index finger.
6. ' The lady Doctor took two vaginal swabs which' she sent to the Chemical Examiner and the report of the Chemical Examiner on the same is Exh. P. H. And is positive since he found that the swabs were stained with semen.
7. ' The only witness of the commission of the offence for which the appellant has been convicted is Mst. Sattan, P. W. 3, who supported the prosecution version through and through and added that she had been subjected to zinabil-jabr on the first night by Abid appellant and Munir (acquitted accused) and on the next night by Abid appellant, Munir and Iftikhar, both acquitted). She was confronted with her statement under- section 164, Cr. P. C. Made before the Magistrate (Exh. D. B.) in which she had stated that both Khari and Aabi had committed this offence with her. Khari is Iftikhar and Aabi is Abid, appellant. Thus her statement before the Court adding Munir to this category was obviously false: Similarly in her statement before the Magistrate,- she had stated that Iftikhar had committed Zina-biljabr with her on both the nights but in her statement at the trial, she stated that Iftikhar had committed the offence with her only on the second night.
8. ' It also appears from the evidence of the Lady Doctor that Mst. Sattan is a woman of easy virtue, since she must be accustomed to sexual intercourse. If this act had been committed for the first time on the first of February, 1980 the healing could not have been completed by the 5th day when she was medically examined. Her statement that she had bled at the time of the commission of the offence is obviously incorrect.
9. It is established that the statement of a prosecutrix is generally required to be corroborated in material particulars for the purpose of basing a conviction on it. If Mst. Sattan had alleged in her statement that she was violated by one person alone, the medical evidence supported by the report of the Chemical Examiner would have provided sufficient corroboration in the present case can only establish that Mst. Sattan had been subjected to sexual intercourse. It cannot be established with certainty as to who was the person among the three persons named by her, who had committed this offence with her. In these circumstances the possibility of even Abid havin been roped in falsely cannot be excluded.
10. ' I have gone through the evidence of Mst. Sattan very carefully, but I find no trace in her evidence to single out Abid as the person who had committed the offence with her. May be that the offence' of Zina was committed with her by Iftikhar or Munir. Even the learned Sessions Judge has not given any reason in support of his findings against Abid. In these circumstances I am constrained to allow this appeal, set aside the conviction, and sentence of Abid, appellant and acquit him. I . Abid shall be released forthwith if not required in any other case.