' Abdul Rashid and his brother Nazir Ahmad and Mushtaq Ahmed and his brother Riaz Ahmad, and their relation Maqsood Ahmad have filed two separate applications for transfer of two criminal cases pending in the Court of Kanwar Azmat Ali Khan, Magistrate Section 30, Jaranwala. The former application pertains to the private complaint by Chiragh Din against the petitioners under sections 307/326/149 and 148, P.P.C. The facts are common and the incident out of which the two transfer applications have arisen is also the same. Moreover, the parties are also the same. I am, therefore, going to dispose of both the applications by means of this order.
' Chiragh Din, who is respondent No,1 in Criminal Miscellaneous 102-T of 1984, got a criminal case registered against the petitioners under sections 325/149, 324/149 and 148, P.P.C. This was regarding an occurrence alleged to have taken place on 25-7-1983 at 7-30 p.m. Within the jurisdiction of P.S. Jaranwala. The matter was thoroughly investigated. The challan was submitted under sections 324/149 and 148, P.P.C. The petitioners applied for anticipatory bail, which was confirmed by the Additional Sessions Judge vide order, dated 30-8-1983. Chiragh Din was not satisfied with the challan submitted by the police. He, therefore, filed a private complaint with regard to the same occurrence on 26-10-1983 in the Court of Kanwar Azmat All Khan. This was under sections 307/149, 326/149 and 148, P.P.C. The petitioners appeared before the Magistrate, informed him that they had already been admitted to pre-arrest bail by the Additional Sessions Judge and that the complaint pertained to the same incident regarding which they had been challaned by the police. Yet the Magistrate by his order, dated 4-12-1983 rejected the bail application and sent the petitioners to the judicial lock-up.
' As the action of the Magistrate was arbitrary the petitioners filed a contempt application against him before the Sessions Judge, Faisalabad. They also filed a civil suit for damages, which was ultimately dismissed on 26-3-1984 being barred by section 1 of the Judicial Officers Protection Act.
' The petitioners thereafter filed an application before the Sessions Judge for transfer of the complaint as well as challan case from the Court of the Magistrate but the same was dismissed on 28-6-1984.
The grounds for transfer of the cases are: first, the arrest of went towards police station. On the way A.S.I. Rashid Ahmad, who at that time was posted at Police Station Saddar, Multan and was on patrol duty at Peeran Ghaib, met them, Charagh Bari narrated to him the incident and the A.S.I.
Recorded the narration in writing which was then read over to Charagh Bari, who signed the same in token of its correctness. Rashid Ahmad, A.S.I., then endorsed the Part Bian (Exh. P.B.) and sent it to Police Station Saddar through Police Constable Nazir Ahmad for registration. The case was accordingly registered at Saddar Police Station.
3. A.S.I. Rashid Ahmad started investigation. He visited and inspected the scene of offence of which he prepared a rough site plan (Exh. P.D.). He also seized the blood-stained Shalwar of Mst. Bushra Bano produced by her at the spot. He made it into a parcel and sealed it. Memo. (Exh. P.C.) was prepared with regard to the seizure of the Shalwar which was attested by Charagh Bari and Mahmood Khan P.Ws. The A.S.I. Sent a Rukka (Exh.P.E.) and got Mst. Bushra Bano medically examined by Dr. Rashida Sohrwardi, W.M.O. Civil Hospital, Multan. He then arrested Muhammad Akbar accused on 10-4-1981. He got him medically examined by Dr. Riazuddin S.M.O., Civil Hospital, Multan on 11-4-1981. He recorded statements of P.Ws. Under section 161, Cr.P.C. And after completing the investigation challaned the accused. The blood-stained Shalwar which he had seized and made into sealed parcel, he had deposited with Muhammad Ali, M.H.C. Who had kept the same in the police Malkhana on 13-5-1981. On 21-6-1981 Muhammad Ali handed over the parcel to Rabnawaz constable for despatch to the office of the Chemical Examiner at Lahore and Rabnawaz had delivered the same at the office of the Chemical Examiner, Lahore. Chemical Examiner received the same on 12th July, 1981, and in his report, dated 14-1-1981 (Exh.P.G.) stated that the Shalwar was stained with semen and blood.
4. Besides complainant, Charagh Bari (P.W.2), Mst. Bushra Bano the alleged victim (P.W.3) gave evidence at the trial and Mahmood Khan and Umar Farooq P.Ws. Were given up. Besides aforesaid complainant and the victim who are the alleged eye-witnesses, the evidence of Dr. Riazuddin, S.M.O. Who examined the accused and Dr. Rashida Sohrwardi, who examined Mst. Bushra Bano was also recorded. The evidence of A.S.I. Rashid Ahmad (P.W.5) and H.C. Muhammad Ali (P.W.4) and constable Rabnawaz (P.W.7) was recorded in connection with the investigation. The appellant- accused in his statement recorded under section 342, Cr.P.C. Denied the allegations about his committing Zina-bil-Jabr with Mst. Bushra Bano and stated that he had been falsely implicated in the case at the instance of Hidayat Ali, Local Councillor. He explained that on the day of alleged occurrence Mst. Bushra Bano was knitting carpet alongwith other workers. She was not a willing worker, therefore, in order to persuade her to work to be quick with the work and for admonishing her he had given her a slap. She had got annoyed and had gone home and afterward the case had been concocted and he had been falsely implicated. He, also stated that the place for knitting carpets is the part of his house where his parents and sisters reside. He is only son of his parents and is aged about 14 years.
5. I have heard the arguments of learned counsel for the parties and gone through the record of the proceedings of the trial. There are indications on the record which create doubt about the guilt of the appellant, of which benefit is to be given to him and, therefore, I find that the evidence on record is not trustworthy and sufficient to sustain the conviction for the reasons given below.
6. Complainant Charagh Bari is the only witness, who has corroborated the version of Mst. Bushra Bano about her raising cries, but to his own admission he was a chance witness. He stated that he is weaver and resides in New Nazimabad near Ghalla Mandi and that at the time of the occurrence he was working on powerloom of Ali Muhammad Timuwala about 400 yards away from the scene of offence. He is stated to have made the statement informing the police about the crime to A.S.I.
Rashid Ahmad at 11-30 a.m. On the day of incident i,e, 7-9-1981. The delay of about 51/2 hours in making the report has not been A satisfactorily explained by the complainant, who is uncle of Mst.
Bushra Bano. It was his version that on finding his niece bleeding after having been raped, he took her to the house of her father and waited there and since the father, mother and others were not there, he took Mst. Bushra Bano to report to the police. The only reason for the delay given by the complainant is that he wanted that the father should know about the incident before any action was taken. However, even after the delay the same reason prevailed as the father was not available but he took her to report to the police. Thus, it is doubtful whether his explanation could at all be considered adequate or true.
7. The defence plea of the appellant that he had annoyed Mst. Bushra Bano by slapping her and that Councillor Hidayat Ali had a hand in implicating him is partly supported as in the cross- examination the complainant had admitted that at the time of going to lodge report with the police Hidayat Ali, Councillor, was also with him.
8. Another indication creating a doubt about the case against the appellant is that whereas the report was made by the complainant to A.S.I. Rashid Ahmad at 11-30 a.m. On 7-4-1981 the formal F.I.R. Was lodged at 12-30 p.m. And the F.I.R. Further discloses that investigation was started and the police left the police station for the purpose on 8-4-1981 at 7-30 a.m. The record of the case including the statement of the Lady Doctor Rashida Sohrwardi shows that Mst. Bushra Bano was brought for medical examination at 11-00 a.m. i,e, before even the statement made to the A.S.I.
About the offence. The first aforesaid statement, as already stated, shows that it was recorded at 11-30 a.m. Most of the investigation namely, the preparation of sketch of the scene of offence, the recovery memo. Of the blood-stained Shalwar, etc. All show that the date of preparation of the same to be 7-4-1981 and not 8-9-1981. It is, therefore, apparent that investigation was made mostly before the registration of the F.I.R. At the police station. The F.I.R., therefore, could not be relied upon even for the purpose of contradiction or corroboration of the evidence on the record.
9. In case of this nature the law of Sharia places emphasis on the quality and also quantity of the evidence. It is, therefore, very surprising that two of the alleged eye-witnesses, who according to the version of complainant Charagh Bari accompanied him inside the house C and actually witnessed the appellant committing Zina with Mst. Bushra Bano were given up by the prosecution.
The usual inference, therefore, could be drawn in the instant case that if examined those two witnesses namely, Mahmood Khan and Umar Farooq, would not have supported the prosecution.
10. The prosecution story is also not very convincing in that it is admitted that the parents, the sisters and other workers work and reside in the same house and there are two looms for carpet manufacturing in the very place where the Zina is said to have been committed. The aspect of the prosecution story about the uncle though a Wajtakkar witness, passing by, came inside on hearing cries of the alleged victim alongwith two other witnesses Mahmood Khan and Umar Farooq also appears to be most unusual, to say the least. When committing Zina, even if it is accepted that other inmates of the house might have been away, the appellant would have closed the doors of the room from inside. However, in the instant case the uncle and his two companions has easy access inside the room. Not only that but the further version that the uncle actually saw the boy committing Zina with the girl is equally unbelievable as human conduct under the circumstances would be for the uncle and his two companion atleast to capture the boy and give him belabouring rather than allow him to wear his Chaddar and walk away in peace.
11. Another surprising thing about the instant case is that the parents of the victim have not been shown or examined as witnesses. At least the father of the girl could have supported the explanation of the complainant about delay in lodging report with the police by deposing to the fact of his absence from his home at the particular time. Another point that occurs to the mind is that if all the inmates of the house of the victim were away how the uncle and the victim got into the house and waited there for the return of the father. A house is not left open and unprotected for anyone to enter.
12. There is contradiction of the medical evidence with the ocular evidence of Mst. Bushra Bano and her uncle with regard to rape having been committed. Dr. Rashida Sohrwardi states that there were no marks of injury on the body of Mst. Bushra Bano and she besides stated that hymen of the girl was intact though there was laceration on the lower part of the same. The two vaginal swabs were taken and sent to the Chemical Examiner, Lahore, for analysis but before getting the result the Lady Doctor could not say whether even attempt to commit sexual intercourse had taken place. In her examination-in-chief Dr. Rashida Sohrwardi expressed the opinion that Mst. Bushra Bano had not been exposed to the risk of sexual intercourse but obviously due to positive report of the Chemical Examiner about semen found on the swabs she stated that attempt to commit rape had been found. Two other observations of Dr. Rashida Sohrwardi deserve notice, the first one being that it was possible to cause lacerating wound by rubbing with blunt substance. The second observation was that the Shalwar of Mst. Bushra Bano however, did not have blood-stains. It must be remembered that according to Dr. Rashida Sohrwardi Mst. Bushra Bano was brought for examination before her at 11-00 a.m. Whereas the report of the crime by complainant Charagh Bari was received by A.S.I. Rashid Ahmad, who had recorded the same and again according to the statement itself at 11-30 a.m. The Investigating Officer no doubt states that he had secured the Shalwar at the spot but the spot was not the house of victim and there is absolutely no explanation as to how she had covered herself when her Shalwar was secured by the A.S.I. The same could have been secured after the report was made to the A.S.I. By her uncle and not before and that again shows the time to be 11-30 a.m. As already stated, but Dr. Rashida Sohrwardi saw her Shalwar which was not stained with blood earlier at 11-00 a.m. It may here be ' observed that the usual chain of witnesses who handled the sealed parcel before taking the same to the Chemical Examiner is not satisfactory in that the two vaginal swabs sent by Dr. Rashida Sohrwardi were, according to the report of the Chemical Examiner, despatched on 7th April, 1981 but were received by him on 20th April, 1981, after 13 days and there is no indication on the record as to why there was delay of 13 days. Similarly the sealed parcel containing the blood-stained Shalwar was received by the Chemical Examiner from Superintendent of Police, Multan on 21-6-1981 and received by him on 12-7-1981. Again there is no proper explanation of inordinate delay in sending the aforesaid sealed parcel to the Chemical Examiner. H.C. Muhammad Ali (P.W.4) stated that he received sealed parcel containing Shalwar from A.S.I. Rashid Ahmad on 13-5-1981. A.S.I.
Rashid Ahmad however, has not explained why he kept the sealed parcel with him for six days before handing it over to H.C. Muhammad Ali. Again H.C. Muhammad All stated that he handed over the said parcel to Rabnawaz constable on 21-6-1981. Constable Rabnawaz (P.W.7) states that he received the sealed parcel on 21-6-1981 which he delivered at the office of the Chemical Examiner, Lahore intact. There is, therefore, no explanation on the record as to why the Chemical Examiner had stated in his report that he received the same on 12th July, 1981. About the aforesaid factual position with regard to the taking of the swabs and Shalwar to the Chemical Examiner, it is quite clear that there was manipulation of the sample and the Shalwar sent and there is no explanation at all for the delay. Consequently no reliance can be placed on the reports of the Chemical Examiner which can corroborate the oral testimony with regard to the particular act of attempt of Zina, allegedly committed by the appellant.
13. The defence plea of the appellant, as already discussed, is under the circumstances found to be plausible and the aforesaid irregularities and contradictions pointed out in the investigation of the case are sufficient to create a doubt about the guilt of the appellant. 1, therefore, allow the appeal, give the benefit of doubt to the appellant and acquit him of the charge. He is on bail and his bail bonds stand cancelled.
' Acquittal ordered.