' FAKHRUDDIN H. SHAIKH, J.--The appellant has been convicted by Sessions Judge, Toba Tek Singh of offence under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to R.I. For 5 years and a fine of Rs, 2,000 or in default of payment of fine to further R.I. For 6 months and also to suffer whipping numbering 30 stripes, vide impugned judgment, dated 13th August, 1984. The appellant has challenged his conviction and sentence by this appeal.
2. The case of the prosecution is that on 24th February, 1979 Mst. Parveen Akhtar daughter of Muhammad Bashir had gone for easing herself at about Ishawela. It is alleged that she had covered short distance from her house when the appellant, who was neighbour of the girl, caught her, put his hand on her mouth in order to stop her from crying and dragged her to a dried-up watercourse. It is further alleged that he forcibly undressed her and committed sexual intercourse with her. The girl is said to be aged about 14 years according to the medical evidence.
3. After the incident the girl came to her house and informed her grandmother Mst. Rani, about the rape. At that time complainant Muhammad Bashir, the father of Mst. Parveen Akhtar, used to work as a labourer in Bhalwal. He had given a telephone number to his mother so that he may be contacted in case of any emergency. Complainant'S mother Mst. Rani, went to a shop of village which is Chak No, 349 G.B., District Toba Tek Singh and requested the shopkeeper to convey her message to Muhammad Bashir at Bhalwal regarding the incident.
4. After receiving the information on telephone, Muhammad Bashir returned to his village after 10 days of the incident i,e, on 5-3-1979 and made enquiries from his daughter Mst. Parveen Akhtar and some co-villagers and then went to police station, Rajana, District Faisalabad and lodged the report the same day at 5-30 p.m. Mst. Parveen Akhtar was also taken to the police station. Mr. Abdul Khaliq A.S.I., Rajana had recorded the F.I.R. And conducted investigation. The victim of the crime i,e, Parveen Akhtar, was referred to the Medical Officer viz. Doctor (Mrs.) Husan Bano Jaffri, who examined her and found that there were no marks of violence on any part of her body. About the state of the private parts of Parveen Akhtar the opinion of the lady doctor was as under:- "Breasts:- ' Soft in consistency, aerola and nipple were of normal colour and development.
' Private parts:-- ' Vulva Vagina fully developed, hymen ruptured and represented by old granulation tissues. Vagina admitted two fingers with slight difficulty. Slight blood-stained discharge from vagina, perhaps menstrual bleeding, said so.
' Clothes were said to same as worn at the time of alleged rape, said so. Shalwar stained with multiple stains of blood."
' Three vaginal swa bs were taken and sent to the office of Chemical Examiner alongwith Shalwar of the girl in sealed parcels. According to the Medical Officer the age of the girl was 14 years.
5. This case was investigated by several police officers including two D.S.Ps. The investigation continued for about 8 months, still the police officers could not decide about the involvement of the appellant in this crime. They therefore, prepared a report for cancellation of the case and submitted such report to the Magistrate concerned. However, the Magistrate was not satisfied with the police report and ordered that the case should be sent up to a Court of law for trial.
6. The appellant was charged with the offence under section 10(3) of the said Ordinance to which he pleaded not guilty. In support of the prosecution case, following witnesses were examined:- ' P.W.1 Parveen Akhtar, P.W.2 Lady Dr. Husan Bano Jaffari, P.W.3 Muhammad Bashir, P.W.4 Muhammad Ashraf, H.C., P.W.5 Khaliq Dad, S.I. And P.W.6 Muhammad Afzal F.C.
' Mr. Muhammad Aslam Khan, D.S.P. Was examined as Court witness No,1 while Muhammad Akbar, Inspector of Police and Haji Umar Din were examined in defence as D.Ws. 1 and 2, respectively.
7. In his statement under section 342, Cr.P.C., the appellant denied having .Committed Zina-bil-Jabr with Mst. Parveen Akhtar and alleged that he had been made "victim of party friction" in the village.
There was a dispute between the appellant and one Khushi Muhammad son of Eidu regarding a village Ihata and litigation was also going on. The appellant alleged that Khushi Muhammad had got him implicated in this case through the complainant.
8. The only direct evidence in this case is of Mst. Parveen Akhtar, prosecutrix who has given her age as 17 years. She has given the story as narrated above. There are certain features in her evidence which make her story doubtful. In the first place, if she was not willing party to the sexual intercourse, it would not have been possible for the appellant to drag her for half an hour to the watercourse and then subject her to sexual intercourse. According to the prosecution the complainant continued committing intercourse with her for about one hour. This appears to be a physical impossibility. Again complainant has also stated that there had been heavy rains during those days. This fact is admitted even by the Investigating Officer. If this was so then it was not possible for the appellant to have committed sexual intercourse with the girl in the watercourse because there must be water in it.
9. The other circumstance which makes the story doubtful is the delay of 10 days in lodging the F.I.R.
The complainant Muhammad Bashir had come to know about the incident on the very day when he was informed on the telephone by his mother. Mst. Rani. In spite of telephonic message having been received by him, he waited for about 10 days before he returned to his village for the purpose of lodging the F .1. R .
10. The most important witness who could have corroborated the prosecution case was Mst. Rani, the mother of the complainant. She was the first person to whom the prosecutrix had informed about the incident and it was she who had sent message to the complainant by telephone. Still she has not been examined as a witness. Nor any reason has been assigned by the complainant as to why he returned from Bhalwal after 8/9 days of receiving the information about such a heinous crime. Again not a single witness of the locality has been examined. It is admitted that several persons reside in Chak No, 349/ G.B. The complainant would have made inquiries from the villagers but none of them has been shown as a prosecution witness. It is in evidence that two respectable persons of the locality, namely, Abdur Rehman and Umar Din were approached by the complainant and the police in order to ascertain the facts. Police had made inquiries from Abdur Rehman and Umar Din who had given in writing that the appellant was innocent. Umar Din has also been examined as D.W.2 who has deposed that he had made inquiries from the people of the village who had collected in the mosque and that Haji Abdur Rehman had also earlier verified the facts in the mosque and had given in writing to the police that the appellant was innocent. D.W.2 Umar Din had endorsed the views of Haji Abdur Rehman who could not be examined because he died before commencement of the trial.
11. Even without reference to the evidence of D.W.2 Umar Din and Haji Abdur Rehman, it can be said that the case has not been proved beyond a reasonable doubt. The most important witness Mst.
Rani, who was available for examination and could have corroborated the version of Mst. Parveen Akhtar has not been examined. The police officers including the D.S.P. Were of the view that the case was not fit for challan. The D.S.P. Mr. Muhammad Aslam had given direction to D.W.1 Muhammad Akbar to prepare cancellation report for submission to the Magistrate, which was done on 15-9-1979. Although C.W. Muhammad Aslam has denied that he had given any such direction to D.W. Muhammad Akbar, but the police papers which were made available to the trial Court at the time of examination of Muhammad Akbar, showed that such direction was there. The relevant extract from the statement of D.W. 1 Muhammad Akbar on this aspect of the case is quoted here under:- "I have based my cancellation report on the final of diary of Rana D.S.P., dated 15-9-1979 which I submit for the perusal of the Court. (Seen)."
' It would thus appear that even after deliberation of 6 months, the police had not reached the conclusion that the case was fit for trial. It was only on the direction of the Magistrate that the case was sent up as he did not agree with the cancellation report.
12. We are convinced that the solitary evidence of the prosecutrix in this case is neither conceiving nor supported by any oral or circumstantial evidence. Although chemical report shows that there were stains of semen on the clothes of the prosecutrix, but it is difficult to believe that she might be wearing the same clothes at the time of examination by the lady doctor which was held after 10 days of the incident. Again according to the lady doctor the prosecutrix was menstruating at the time of the examination. If this was so then it would not have been possible for the medical officer to obtain vaginal swa bs because the semen must have been washed off. Under these circumstances, the medical report, either in respect of semen on the clothes or in respect of the vaginal swa bs, is of little value.
13. Mr. Muhammad Yamin, learned counsel for the State also conceded that the case is not free from doubt. For the reasons stated above we hold that the charge of offence under section 10(3) of the said Ordinance has not been proved against the appellant beyond a reasonable doubt.
Consequently, we allow this appeal and acquit the appellant of the offence he has been charged with. He is on bail. His bail bond stands' discharged