Ali Muhammad, petitioner. Was tried and convicted by the Senior Civil Judge with powers of Magistrate Section 30, Sahiwal, by his order dated 1st November. 1981 on the charge of committing rape with Mst. Razia (P. W. 11, a girl of about 15 years and 10 months of are. On 13th January, 1978, a little before sunrise. In Chak No. 86/6-R. He was sentenced to 3 years' R. I. And a fine of Rs. 1,000, in default of pay--ment whereof; to undergo further R.I. For six months. His appeal was dismissed by the learned Sessions Judge, Sahiwal, on 28th November, 1981 Bubo upheld the conviction and sentence both vide his order dated 28th November, 1981. Hence this revision petition.
2. Briefly stated the prosecution case is that on 13th January, 1978, little before sunrise, Mst. Razia (P.
W. 1), an unmarried girl went to urinate in the bath-room outside her house situate in Chak No. 86/6-R. After urination she had hardly tied the string of her Shalwar when Ali Muhammad petitioner, entered into the bath-room. He broke the string of the Shalwar of Mst. Razia and fell her on the ground and then committed rape on her. The girl raised alarm which attracted her father Atta Muhammad (P.W. 2) and relative Salamat Ali (P.W. 3). However, Ali Muhammad, petitioner, succeeded in making good his escape. The occurrence was reported by the prosecutrix after 4 days, i.e. On 17th January, 1978 vide her statement Exh. P.A. Which was recorded by Abdul Latif Muharrir H.C. (P. W. 5) at 9-15 a.m.
3. Lady Dr: Mrs. Nasim Aslam (P. W. 4) medically examined the prosecutrix and found following injuries on her person :-
(1) An abrasion 1" x --" on the upper part of right buttock.
(2) A bruise 1" x --" on the middle of right back.
(3) A scratch --" on the right side of forehead.
The injuries were simple in nature caused by blunt weapon. PT e` probable duration of injuries was three days. The doctor also observed that the hymen of the girl was torn which easily admitted two fingers. According to her birth certificate, she was born on 16th March, 1962 and her age on the date of occurrence was calculated to be 15 years and 10 months.
4. The petitioner was arrested by Riaz Ahmad, S.H.O. (P.W. 6) on 21st January, 1978. He was got medically examined and according to the medico-legal report Exh. P. D., he was of 30 years of age and was fit to perform sexual intercourse. After usual investigation, the petitioner was challaned to Court, where he was tried and convicted in the manner stated above.
5. The petitioner, when examined under section 342, Cr. P. C. Had pleaded innocence and stated that he was falsely implicated due to enmity-However, he did not examine any witness in defence.
During cross-examination, the petitioner's counsel has asked questions to the witnesses which indicated that he made an attempt to show that the prosecutrix being major had a liaison with the petitioner and she had invited him to the bath-room for sexual intercourse and thus the prosecutrix was a consenting party to the, affair. It was also suggested that the prosecutrix and the petitioner were spotted out by the relatives of the prosecutrix and she was given beating and in this way the injuries found on her person were explained.
6. Both the learned Courts below from the trend of the cross-examination gathered that the petitioner had admitted to have com--mitted sexual intercourse with the prosecutrix with her consent but the petitioner failed to establish "consent" of the girl. In their opinion the injuries on the person of the prosecutrix provided sufficient evidence to show that she was not a consenting party and that during the struggle she had received injuries. Another fact which appears to have influenced the mind of the lower Courts, is that in our society nobody would like to risk his family honour by involving his woman folk just for the sake of implicating innocent persons. Regarding the delay, the learned Sessions Judge glossed over this objection by saying that in such cases the delay in making report is always considered to be immaterial specially when the parties are placed in society on uneven footing.
7. I have heard learned counsel for the petitioner as well as for the State and perused the record.
8. It may be stated at the outset that I had admitted this petition to regular hearing only on the point of sentence. While going through the record with the assistance of the learned counsel for the parties, I find that there are serious lacunae in the evidence brought on record against the petitioner and I am inclined to consider this case in a broader prospect to see if the Courts below had correctly appreciated the evidence and drawn reasonable conclusions therefrom.
9. I agree with the learned counsel for the petitioner that in the instant case inordinate delay of 4 days certainly recoils on the genuineness of the case for more than one reason, e. g. :-
(a) There is no evidence on record-to show that any semen was detect--ed in the genital of the prosecutrix to establish beyond reasonable doubt that sexual intercourse was committed with her.
(b) Assuming that she was subjected to sexual intercourse, the prosecutrix who admittedly is 15 years 10 months old attained age of discretion and according to Lady Dr. Mrs. Nasim Aslam, she was not a virgin rather she was an old case of sexual intercourse, it could therefore reasonably, in circumstances of the case, be inferred that she was a consenting party.
(c) Delay of 4 days in lodging the F.I.R. In the aforesaid background has stolen importance and it suggests that the complainant party had deliberated for a long period to concoct a story with a complexion of reasonableness to involve the petitioner.
(d) All the material witnesses in this case are admittedly related inter se and their testimony lacked corroboration from any unim--peachable source.
10. For what has been stated above, I am of the view that the charge under section 376, P.P.C.
Brought against the petitioner has not been proved beyond reasonable doubt. The result thus is that the conviction and sentence of the petitioner is set aside and he is acquitted: He be released forthwith, if not wanted in any other case.