1. ' B.G.N. KAZI, J.-- The appellant was sent up before Sessions Judge, Bhakkar to stand his trial for having committed Zina-bil-jabr with Mst. Amiran daughter of Fateh Muhammad an offer nee punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance ). The learned Sessions Judge, Bhakkar found him guilty of committing the aforesaid offence and convicted him under section 10(3) of the Ordinance and sentenced him to R.I for 16 years and whipping numbering 20 stripes. The instant appeal has been filed against the aforesaid conviction and sentences.
2. The prosecution case briefly stated is as under: ' On 23rd April 1983 at about 11 a.m. Mst. Amiran daughter of Fateh Muhammad was cleaning wheat sitting in the courtyard of her parental home in Bitti Manjhar alone all the other inmates having gone for cutting gram crop when the appellant who lives in a nearby house came. It is the prosecution case that neither house of the appellant nor the house of the alleged victim has compound wall. The appellant caught hold of Mst. Amiran from her hair, took her inside the room, broke the string of her shalwar and forcibly committed Zina with her on the ground. She had raised alarm on hearing which her father Fateh Muhammad, Gul Sher and Sohna had come. The accused on seeing them ran away. She had reported the matter at Police Post Jandanwala, where A.S.I. Gul Hameed had recorded her complaint and had read it out to her. She had thumb-marked the same in token of its being correct and it was sent to Police Station, Kallurkot Where it was registered as F.I.R. By Moharrir Head Constable Ghulam Qasim. A.S.-I. Gul Hameed had sent Mst. Amiran for medical examination and had recorded statement of her father Fateh Muhammad. On the next day he had visited the scene of offence and prepared a site ma (Exh . P . C . ) . He recorded the statements of P.Ws. He arrested the accussed on 8-5-1982 and got him medically examined for potency. After completing the investigation, he made over the papers to the S.H.O. For challaning the accused but there were consultations with the prosecuting agency and in the meantime he had been promoted as S.I./S.H.O Police Station, Kallurkot and had submitted the challan in the Court.
3. We heard the arguments of the learned counsel of the parties and went through the record of the trial proceedings and were agreed that the evidence on record is not credible and sufficient to sustain the conviction of the appellant and giving him the benefit of doubt, we ordered his acquittal and consequently issued short order to Jail authorities for his release. The reasons for our decision are as under: ' There is delay in the filing of report by the prosecutrix as the alleged occurrence took place at 11 a.m. On 23-4-1983 but the report was made on 25-4-1983 in the evening. The police post even according to the prosecutrix is so near that, she reached it within half an hour.
2. ' There is only the testimony of the prosecutrix against the appellant which too does not inspire confidence, since it is not only not supported by any circumstantial evidence but is not eonsistent.With the evidence of the only witness P.W. Gul Sher by whose testimony it is sought to be supported. It is significant to note that the prosecution gave up Fateh Muhammd the father of the prosecutrix who according to her was first to reach on hearing the alarm raised by her. Similarly P.W Sohna was also given up having only Gul Sher who to his own admission is resident of Randari in Noor Pur Tehsil at a distance of three miles from Manjhar and had been visiting his brother Sohna at Manjhar.
3. ' It was the evidence of the prosecutrix that she is married to one Elahi Bakhsh but the 'rukhsati' had not taken place and she was still a virgin at the time the appellant raped her. However, the appellant in his statement under section 342, Cr.P.C. Had totally denied the allegation stating that he had been falsely implicated as his father had purchased land from Fateh Muhammad father of the prosecutrix and had sold it to one Ahmad yar. Falak Sher brother of Gul Sher had instituted a pre-emption suit which was dismissed whereas his father's suit for declaration had been decreed.
4. He had further raised the defence that he had beaten Falak Sher brother of P.W.Gul Sher and a criminal case was registered against him but he was acquitted. Fateh Muhammad and Gul Sher who are close relations, had, therefore, falsely implicated him and they had the opportunity as prosecutrix wife of Elahi Bakhsh had been having sexual intercourse with her husband without formal Rukhsati taking place. The prosecutrix was sent to Dr. Mrs. Arjmand Bano Rafi for medical examination who gave evidence as P.W.3 in the case. She belied the version of the prosecutrix that she had been a virgin and had received injuries during the rape. She gave the opinion that Mst.
5. Amiran Bibi was not a virgin and was accustomed to sexual intercourse. She further stated that there were no marks of voilence on her body including private part except a faint linear abrasion in front of the chest one c.m. Long. The witness had taken two vaginal swabs of the prosecutrix which according to the report of the Chemical Examiner did not have stains of semen. Thus the aforesaid expert evidence did not corroborate the evidence of the prosecutrix that she had struggled and resisted for one hour and had been raped.
6. ' It was the further version of the prosecutrix that due to the struggle and the rape her clothes had got torn and her shalwar was blood-stained. However, A.S.-I Gul Hameed (P.W.6) who had visited the scene of offence did not notice any signs of resistence or struggle nor did he find any blood stains on the spot. He also belied the statement of the prosecutrix by stating that she had not produced before him broken string, blood-stained shalwar or any torn shirt. He also stated that he did not notice any bruises on the face or other parts of her body nor did he find any scratches or injuries on the person of the accused.
7. ' The version of prosecutrix about what actually transpired at the relevant time appears improbable and has not the ring of truth. She stated that her father, mother and sister had gone and were working in the field of Amin Baryar at a distance of one and a half miles from their house.
8. About the rape she stated that she struggled for an hour after she was forcibly taken inside the room. She admitted that the house of the accused and her own house do not have compound wall and are in the open. She also admitted that near the house there are houses of Ghulam Muhammad, Ramzan, Azam, Sultan and Usman having open courtyard in front and all those persons have families and that there are other houses numbering almost 150 nearby. She further stated that she started raising alarm as soon as the accused caught her. It is, therefore, not easy to understand why no one came to her rescue. It is also not clear whether she kept on crying for help for all the one hour of time that she kept struggling and resisting and how it was that her father who was one and half miles away came to her rescue and how Sohn and Gul Sher her relatives also happened to come to her rescue, specially Gul Sher who was admittedly a wajtakar witness.
9. She further stated as under:- "I continued alarm inside the room as well. The struggle continued for sufficient time. The accused, however, overpowered me. The string of my shalwar broke in no time. As he overpowered me I could not bruise his face. He committed Zina with me on the ground. My shalwar remained in my legs however; it had not been kept aside. The accused committed Zina with me for some time when the witnesses came I was to the east of the door and the accused was on me in front of the door so that he could see and have view of outside. First was my father who came and other witnesses Gul Sher and Sohno were just behind him and were just walking. My father was at a distance of 5-6 karams when accused seeing he ran away."
10. ' P.W. Gul Sher was the only eye-witness examined as the father of the prosecutrix and Sohno were given up. It is here observed that the usual presumption can be drawn that the witnesses if examined would not have supported the prosecution.
11. ' P.W. Gul Sher stated that they were two karams from the door of Fateh Muhammad when the accused went away and Fateh Muhammad was one karam ahead of them when accused ran away. The version is hardly believable as the father would not have allowed the ravisher of his daughter to escape when he was only one step away and his two other relatives were at his back.
12. Similarly if the version of the prosecutrix that the rapist had his face towards the door to look outside while he was on her, accepted, she could not have seen the witnesses till they had entered.
13. It is the version of Gul Sher that they waited outside while Fateh Muhammad the father went in, so that it is undoubtedly exaggeration on his part to say that he actually saw the accused committing Zina.
14. ' Before we conclude this judgment we would like to observe that Mr. S.M. Naeem, the learned counsel for the State argued that the appellant is a Zamindar and the victim a commin and, therefore, the police had spoiled the case of the prosecution to help him. Such generalisation amounts to condemning a category of public servants without giving them a chance of being heard. He has referred to particularly to the fact that Bashir Hussain Shah, D.S.P., Kallurkot had appeared as defence witness. The learned counsel failed to point out any particular misstatement in the evidence of the witnesses which could be considered illegal or wrong. We have to consider whether there is enough and reliable evidence on the record to prove the guilt of the accused even though he may belong to any class of society. Every citizen has to be treated with equality under the law and it is inconceivable that different rules of appreciation of evidence should be applied to a particular class of people specially in a Islamic country where the law of Sharia which treats all persons alike without any distinction of class, caste or status, prevails such discrimination would in fact be hard to find in any legal system. It is also remarked that no instances of failure by the police to observe the legal procedure have been pointed out in the evidence and in any case the evidence of experts like the Doctor and the Chemical Examiner has also not supported the prosecution and we have no reason to believe that whatever they have said is not the truth and the only truth.
15. ' For the reasons stated the evidence on record is not sufficient to prove the guilt of the appellant without possibility of doubt, and we given him the benefit of doubt and acquit him.