Azhar Abbass (appellant) along with Nagina Bibi was tried in case FIR No. 501 dated 02.10.2012 under Sections 365-B/376 PPC at Police Station Sadar Mianchannu District Khanewal on the complaint of Muhammad Ramzan (PW-2) and on conclusion thereof, vide judgment dated 25.06.2013 passed by the learned Additional Sessions Judge Mian Channu, Mst. Nagina Bibi was acquitted whereas appellant was convicted under Section 376 PPC and sentenced to undergo 14 years R.I with fine of Rs. 30,000/-. In default of payment of fine he was ordered to further undergo 6 months S.I. Benefit of Section 382-B, Cr .P.C. was also extended to appellant.
2. Being aggrieved from the judgment of the learned trial Court appellant has approached this Court through the instant Criminal Appeal.
3. Learned counsel for appellant contends that prosecution's story from the day one is contradictory hence there was no question at all to record the conviction by the learned trial Court.
4. Learned counsel for complainant does not dispute the contentions raised by learned counsel for appellant, however , the learned ADPP maintains that learned trial Court after appreciating entire evidence came to a right conclusion that prosecution has succeeded to prove its case beyond reasonable doubt.
5. HEARD.
6. Facts of the case are that on 29.09.2012 Muhammad Ramzan (PW-1) moved an application (PA) to S.H.O where he maintained that on 26.09.2012 Robina Bibi (PW-3) daughter of his brother at about 01:30 pm when was returning from her school she was intercepted by Mst. Nagina Bibi who had taken her/Robina Bibi to her house by inducement. According to complainant, appellant was already present there who thereafter committed Zina bil jabr .
7. On the basis of above application FIR (P A/1) was recorded by Muhammad Afzal ASI.
8. Conclusion of investigation was submi ssion of a report under Section 173, Cr.P.C. (Challan) in the Court where on 14.05.2013 a charge under Sections 365-B/376 PPC framed against appellant and his co-accused was denied by them and subsequent thereto prosecut ion had produced Ghulam Abbas Consta ble (PW-1) Muhammad Ramzan (PW-2) Robina Bibi (PW-3), Mazhar (PW-4), Muhammad Afzal ASI (PW-5), Mohammad Ashraf Head Constable (PW-6), Dr . Banazir Sajid (PW -7) and Hashmat Bilal (PW -8).
9. In his examination appellant pleaded his false involvement.
10. The prosecution case from the day one is doubtful on the basis of contradictor y stories. Occurrence took place on 26.09.2012 whereafter it was 29.09.20 12 when complainant moved an applicat ion (Mark-A) to the learned Area Magistrate seeking permission of medical examination of Robina Bibi. The story given in that application was different from FIR as it was alleged that Robina Bibi was enticed and abducte d by appellant along with two unknown persons and all they committed rape with her. Said application although was brought on record as Mark "A" but the same was admitted by complainant and the victim, therefore, it can be validly read in evidence.
11. The story of the prosecution that was introduced in FIR is also not believable the appellant in presence of his sister-in-law (Sali) will commit rape with Robina Bibi in her house. The most important evidence in this case is of Dr. Banazir Sajid (PW -7). The relevant portion of her examination in chief is as under: "On 29.09.2012, I was posted at THQ hospital as W.M.O on the said date Robina Bibi D/O Hashim Ali, about 15- year of age RIO Chak No. 45115-L Mianchannu was brought to me by Shamila Bashir 976-L.0 alongwith an application marked to me by M.S for her medical examination. The carbon copy of application Ex.PB, is having my signature. According to history , her LMP was on 12.09.2012. On her local examination, there was an abrasion about 0.8 CM X 0.2 CM, yellow colour at the centre and pink colour at the periphery was seen at the posterior forchett. Mild hperemia of left libia meorah measuring about 0.5 CM X 0.5. Hymen was not intact. No hyperemia abrasion, bruise or laceration etc were seen at hyminal tag. Two fingers could pass into vagina with mild tenderness. No bleeding was seen at that time, however , white colour discharge was present. Duration of injuries were about three to four days prior ."
12. The Statement of the lady doctor was a final blow in prosecution's story hence there was no good reason assigned by the learned trial. Court while convicting the appellant.
13. This is duty of prosecution under all circumstances to establish the charge against accused beyond reasonable doubt otherwise accused has a right of acquittal not as a matter of premium or concession but as a matter of right.
14. Resultantly , this appeal is allowed . Impugned judgment dated 25.06.2013 is set aside . Appellant is acquitted from the case. In pursuance to order dated 12.10.2021 appellant has been produced by Shahid Mehmood ASI in custody therefore, he shall be released forthwith.