' ALl HUSSAIN QAZILBASH, J.-This order will dispose of an appeal filed by Sanaullah alias Sanata son of Muhammad Khan resident of Kharal Wala, Police Station Sukheke, Tehsil Hafizabad, District Gujranwala from the order of the learned Sessions Judge, Gujranwala dated 21-11-1982 whereby he convicted the appellant under section 10(3) of Ordinance VII of 1979 and sentenced him to 25 years'
R. I. And 30 stripes.
2. The brief facts are that Mst. Safia Bibi daughter of Muhammad resident of Kharal Wala on 21-11- 1981 was on her way to the Police Station when sbe met Muhammad Yousaf A. S. I. Near village Puraneke at 3.30 p.m. And made a report alleging therein that, yesterday at "degarwela" she had gone from her village to Dhari situated at about two furlongs. Her father and brother were working in their fields at a distance of 3/4 acres from her Dhari. While she was collecting cow dungs Sanaullah alias Sanata whose Dhari is situated at a distance of about 3/4 acres from her Dhari landed in her Dhari by scaling the wall, picked up her forcibly, took her to the cattle shed, pulled off her shalwar and started committing rape upon her. She tried her best to rescue herself but without success. She made hue and cry which attracted Hussain son of Noora and Riasat son of Hayat who were passing nearby. Both of them reached the spot and witnessed the entire occurrence. They also tried to apprehend Sanata but he made his escape good. In the meantime her father and brother Ghulam Hussain also reached the spot to whom the entire occurrence was narrated. She did not go to the police station for report straightaway because some sort of compromise was going on. As the matter could not be patched up therefore, the above report. Muhammad Yousaf P.
W. 7 after recording the above report read it over to Mst. Safia and got her thumb-impression in token of its correctness. The witness produced before the Investigation Officer her shalwar Exh. P. 1 stained with semen which was collected and made into parcel vide memo. Exh. P. B. He sent the report Exh. P. A. To the police station for the registration of the case. In order to get the medical examination of the prosecutrix the Investigation Officer first took her to the Civil Hospital, Hafizabad but since he could not find the doctor there he took her to Police Station Sukheke and on the following day, he took her to Civil Hospital, Gujranwala but there too the Lady Doctor was not available. She was, therefore, taken to Wazirabad and got her medically examined by a Lady Doctor. After having medically examined, the Lady Doctor handed over to the Investigation Officer her medico-Legal-Report and a sealed phial containing vaginal swabs. She also handed over an envelope. The I.
0. On 23-11-1981 handed over the parcel containing the shalwar, phial containing the vaginal swabs and the envelope to ljaz Hussain Moharrar for sending them to the Chemical Examiner who on 2- 12-1981 sent them to Lahore through Asmat Ullah F. C. (P. W. 4). The witness in hand on 2341-1981 inspected the spot, recorded the statements of P. Ws , prepared the rough sketch of the place of occurrence which is Exh. P. E. He arrested the appellant on 23-11-1981 and also got him medically examined for his potency.
3. After the completion of the investigation the case was put in the Court for trial where the prosecution produced as many as 7 witnesses in support of case. The appellant in his statement under section 342, Cr. P. C. Has completely denied the charge and stated that he has been charged because of enmity with P. Ws. And pleaded innocence. The learned trial Court however, convicted and sentenced him as stated earlier, therefore the present appeal.
4. We have heard the learned counsel for the parties. The fate of this case hinges upon the oral testimony of Mst. Safia, the Lady Doctor Shagufta Shaheen (P. W. 2) and the report of the Chemical Examiner. Mst. Safia Bibi who appeared as P. W. 1 at the trial has supported the version of the occurrence given by her in the First Information Report, but by carefully analyzing her statement we have come to the conclusion that whatever she deposed in the First Information Report and the trial is not the whole truth. In the first instance the occurrence is alleged to have taken place on 20- 11-1981 at degarwela but the report of the same was made in the police on the following day at 3.30 p.m. And no plausible explanation has been put forth by the prosecution for such an inordinate delay in spite of the fact that soon af.Er the occurrence the father and the brother of the prosecutrix and other witnesses reached the spot, and were apprised of the situation. The record shows that police station is also not far away from the place of occurrence. The explanation offered is beyond one's comprehension. How can we expect a father or a brother whose daughter or sister has been violated and disgraced to agree to compromise the matter with a person who had committed such a heinous crime. This seems to be lame excuse and has been put forth with a bad faith. This delay has thus created doubt in or mind about the veracity of the prosecutrix.
5. At the trial she stated that as soon as the appellant landed in her Dhari by scanting the wall he took her forcibly inside the Kurh, laid her on the ground, broke the string of her shalwar, pulled it off and subjected her to sexual intercourse by force. During the whole process she had been raising hue and cries and resisted the commission of sexual intercourse and sustained numerous scratches on her person. She further stated that the appellant was still in the Kurh when Hussain and Riasat P. Wa. Arrived and they tried to apprehend him but he managed to escape; that subsequently she came out of the Kurh tied the two pieces of her strings and then put it in her shalwar which she wore and then returned to her house alongwith her father and tirother; that she did not change her clothes and appeared before the police on the next day in the same clothes.
6. The manner in which she has described the commission of rape by the appellant is not at all supported either by the statement of Lady Doctor Shagufta Shaheen P. W. 2 or for that matter by the circumstantial evidence. Though the Lady Doctor who had examined Mst. Safia Bibi on 22-11- 1981 opined that the prosecutrix was subjected to sexual intercourse but she did not find any mark of fresh injury on her person. She also admitted that there was no external mark of violence on the body of Mst. Safia Bibi. These observations belie roots and branches of the allegation of rape levelled by her. As far her allegation that the appellant at the relevant time had broken the string of her shalwar and then subjected her to sexual intercourse goes, we have examined the string in the open Court and found that though it was an old string but it was not broken in the fashion and manner described by her. The learned trial Court had taken note of this fact while recording the statement of the prosecutrix.
7. There is no doubt that Mst. Safia Bibi is a victim of sexual intercourse but as the case of the prosecution stands, it is very difficult to connect the appellant with the commission of the offence, and we say so for the following reasons :-
(i) The report of the occurrence was made by Mst. Safia Bibi to Muhammad Yousaf A. S. I. (P. W. 7) on 21-11-1981 at 3.30 p.m. And she was got medically examined the next day at 4.50 p.m. By the Lady Doctor at the Civil Hospital Wazirabad. During this whole period the prosecutrix remained with the said witness and it is admitted by Muhammad Yousaf A. S. I. (P. W. 7) that he took her to Police Station Sukheke, and on the following day took her to Civil Hospital Gujranwala for her medical examination. The fact, however, that the prosecutrix was kept in the police station at Sukheke has been denied by Ijaz Hussain who was then posted as Moharrir Police Station Sukheke. He has admitted that Muhammad Yousaf A. S. I. Did not return to the police station on 21-11-1981 and 22-11- 1981 but returned on 23-11-1981. The keeping of this girl by Muhammad Yousaf A. S. I. For about two days and allegedly taking her from hospital to hospital is in itself an act which casts doubt about the bona fide of this police officer. It was hardly expected of him to keep a young lonely girl with him for such a long time and the explanation offered by him, on the face of it is preposterous. How could we believe that there would be no doctor to examine the prosecutrix at the Civil Hospitals at Hafizabad and Gujranwala? This has led us to an apprehension that this police officer has deliberately kept this girl with him with some ulterior motive.
(ii) The admission of the Lady Doctor that the victim Mst. Safia Bibi was subjected to sexual intercourse within 5 to 7 days; and that the possibility that she was subjected to sexual intercourse 7 days prior to the medical examination or a few hours or even one hour before the medical examination cannot be ruled out, has all the more, made the case against the appellant extremely doubtful.
(iii) The admitted position about the sending of the swabs taken by Lady . Doctor from the vagina of the Mst. Safia Bibi, her semen-stained shalwar and an envelope (the contents of which are not disclosed) to the Chemical Examiner is that the same were sent to him after about 9 days. Why these materials were kept by the police for all these days has apt at all been explained by the prosecution.
' This is another circumstance which has rendered the can against the appellant doubtful.
7. The view, we therefore, take is that the case against the appellant is not free from doubt. We accept this appeal, set aside his conviction and sentence and acquit him of the charge.