' The appellant was tried by the Second Additional Sessions Judge, Sahiwal, on charges of committing criminal trespass into the house of Sahrifan and committing Zina-bil-Jabr with her. He was convicted under section 450, P.P.C. And sentenced to R.I. For 3 years and to pay a fine of Rs, 500 or in default to suffer further R. 1 for 3 months, and under section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to R.I. For seven years and whipping numbering 30 stripes. He has filed the instant appeal against the aforesaid convictions and sentences.
2. The facts of the prosecution case are as under :- ' On 21st March, 1981 Mst. Sharifan daughter of Wali Muhammad resident of Kot Hukam Singh, Tehsil Pakpattan Sharif, District Sahiwal, complained to A.S.I. Manzur Ahmad to Malka Hans, who at the time was present at Adda Nurpur of his circle, and the complaint was drafted by him on the verbal statement of Mst. Sharifan. It was read over and explained to her and in token of its correctness she put her thumb mark on it. A.S.I. Manzur Ahmed sent the complaint to the Police Station for formal registration of the case. H. C. Khadim Hussain of Malka Hans P. S. Who received the complaint drafted formal F.I.R. Which was registered.
3. The F.I.R. Translated in English reads as under :- "I am a resident of Kot Hukam Singh. Yesterday, i. e. 20th March, 1981 I was all alone in my house, my brother and my mother had gone to Nurpur to get medicines. At about 3/4 p. m. I was sitting alone, in the courtyard of my house when Shaukat son of Yar Muhammad Bodla armed with a knife came there and after placing his hand on my mouth forcibly took me inside the room. He threw me on the ground, removed my shalwar and committed zinabil-Jabr with me. I raised alarm on which Shah Muhammad son of Sikander, caste Sukhira Rajput and Sadiq son of Said Muhammad caste Rajput Chauhan came there. On seeing them, Shaukat ran away, Mst. Ajhhu daughter of Pathana caste Bhatti was present outside the door and it was with her connivance that Shaukat committed zina-bil-jabr with me. Necessary action be taken."
4. A.S.I. Manzur Ahmad got Mst. Sharifan medically examined by Lady Doctor Zubaida Khatoon, Medical Officer, District Headquarters Hospital, Sahiwal, on the same day. A.S.I. Manzur Ahmad visited the scene of offence and prepared rough site plan. He recorded statements under section 161, Cr. P.C. Of the P.Ws. He partly conducted the investigation and handed over the same to D.S.P.
Ch. Sanaullah of Pakpattan on 24th March, 1981. After completion of the investigation the appellant was challaned only for the offence under section 451, P.P.C. And no case against Mst. Ajhhu could be made out. The challan was submitted in the Court of Ilaqa Magistrate. However, Mst. Sharifan filed direct complaint under section 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, against the appellant and Mst. Ajhhu on 16th May, 1981 in the Court of Sessions Judge, Sahiwal and the Magistrate before whom the challan case was pending forwarded the same to the Sessions Judge for trial alongwith the direct complaint case. Sessions Judge, Sahiwal directed the complainant to present the direct complaint before the Ilaqa Magistrate so that it could be sent up for trial in the Court of Sessions. The complainant however filed another complaint directly in the Court of Sessions Judge, Sahiwal, on 19th May, 1981 which was forwarded to Magistrate empowered under section 30, Cr. P.C. For inquiry. The Magistrate recorded statements of witnesses including that of Lady Doctor Miraj Bokhari, who at the instance of the complainant had examined her on 16th April, 1981.
5. The Second Additional Sessions Judge, who ultimately was entrusted with trial of the direct complaint case as well as the challan case proceeded with complaint case in which there are two accused and disposed of both the cases by single judgment.
6. The complainant produced six P.Ws. Namely Dr. Miss Miraj Bokhari (P.W. I) the complainant herself (P.W. 2), Maqbul (P.W. 3), Sadiq (P.W. 4), Shah Muhammad (P.W. 5) and Muhammad Ali (P.W.
6). Of these witnesses Dr. Miss Miraj Bokhari who had examined Mst. Sharifan on 16th April. 1981 at her instance, and Maqbul and Muhammad Ali who were named in the direct complaint, were not witnesses in the challan case.
7. I have heard the arguments of the learned counsel of the parties and gone through the record.
There are inherent weaknesses in the4 case of the prosecution which create doubts regarding the guilt of the appellant.
8. Undoubtedly the F.I.R. Was lodged after delay and the complainant explained that her brother and mother bad gone out to Nurpur and it was only after their return that she could go and report to the Police. The learned Additional Sessions Judge accepted the explanation without considering the fact that the brother and mother of the complainant were neither offered nor examined as witnesses, who could have corroborated at least her version about the delay. It is surprising to note that the young girl went herself to complain to A.S.-I. Manzur Ahmad at Adda Nurpur and although she stated that her mother accompanied her, there is no evidence of the investigating authorities including the A.S.-1. To that effect. Even when she was not satisfied with police investigation again she filed the direct complaint and in the complaint to the brother and mother were not cited as witnesses.
9. The evidence of the complainant is not at all supported by the medical evidence of the doctor of her own choice namely Dr. Miraj Bokhari who examined her on 16th April, 1981, 27 days after the alleged rape. The Doctor was of the opinion that she had been subjected to sexual intercourse 4 or 5 days prior to 16th April, 1981. The evidence, therefore cannot possibly corroborate the evidence of so-called victim of the rape which according to her took place on 20th March, 1981. It is also significant to note that the Chemical Examiner did not find any semen on the swabs sent to him by Dr. Mrs. Miraj Bokhari. The compliant had recourse to second medical examination and opinions although the evidence of Dr. Zubaida Khatoon fixed the time of sexual intercourse on the date of incident, only, because of her opinion that the complainant was habitual to sexual intercourse. She had given one of the reasons for her opinion to be the fact that she admits two fingers easily in her vagina and the Doctor denied that Sharifan felt pain during medical examination. The opinion given by Dr. Miraj Bokhari is also that the vagina admits two fingers but according to her the examination was painful. Since the doctor was also definite about their having been textual intercourse 4/5 days prior to 16th April, 1981, the pain may well be attributed to it but not to the alleged rape by the appellant on 20th March, 1981. While discussing this aspect of the case it is observed that it is part of defence that the girl is one of easy morals. The learned counsel for the appellant in this respect referred to the deposition of Ch. Sanaullah, D.S.P. In which he inter alia stated that according to his investigation it was some other person namely Shah Sawar who had illicit relations with Mst. Sharifan.
10. It is also apparent that she had not mentioned in her statement which was incorporated in the F.I.R. And which has been reproduced in extenso above, even the names of P. W. Maqbul and Muhammad Ali as eye-witnesses. Nor had the alleged eye-witnesses mentioned by her namely Shah Muhammad and Muhammad Sadiq in their police statements mentioned Maqbul and Muhammad Ali as having seen alleged rape being committed. However, in her direct complaint Mst. Sharifan for the first time mentioned that Maqbul and Muhammad Ali had seen the appellant running away. During the trial they claimed to be eyewitnesses and further that their statements had been recorded by police which assertion was belied by the record.
11. The very fact that the learned trial Court did not believe the testimony of Mst. Sharifan as against co-accused Mst. Ajhhu should have been sufficient to hold that she was not a trustworthy witness.
12. The prosecution version that although four persons had seen the appellant actually committing rape but had allowed him to escape also makes the story doubtful. He had to tie his shalwar and in the process could have been over-powered.
13. There are serious contradictions in the testimony of the alleged eye-witnesses regarding what they actually saw. For instance P.W. Maqbul D Ahmad stated that P.W. Shah Muhammad had given piece of cloth which he was carrying on his shoulder to Sharifan to cover-up, but according to P.W.
Muhammad Sadiq after the act had been done in their presence Sharifan stood up and tied her shalwar. P.W. Shah Muhammad denies that he had given Sharifan a piece of cloth for covering up.
14. Under the circumstances stated, there is doubt created within regard to the guilt of the accused and the evidence against him is not trustworthy. I accordingly allow the appeal and giving the benefit of doubt to Shaukat Ali son of Muhammad Yar Bodla set aside the conviction and acquit him. He may be set at liberty immediately if he is not in custody in connection with any other case.