For the offence of Zina-bil-Jabr under section 10(3) of the Ordinance VII of 1979 committed on 21-7- 1983 at 9-00 a.m. In the field of Gul. Hussain Shah and Irshad Hussain Shah village Chinna Police Station Bhakkar Saddar, Ishfaq son of Imam Bakhsh, aged 17/18 years resident of Mauza Chanda stands convicted and sentenced to 10 years' R.I. And 30 stripes. The conviction and sentence has been assailed by filing the present appeal by the convict-appellant.
2. The prosecution version of the incident as brought out at the trial is that on 21-7-1983 at about 9- 00 a. m. Mst. Saffo Mai after serving meals to her father Kalu Khan P.W. Was on her way back to the home, as she was passing near the sugar-cane fields of Gul Hussain Shah, the accused Ishfaq caught her, dragged her inside the sugar-cane field and there putting her on the ground and detrousering her, committed Zina-bil-Jabr with her. Mst. Saffo Mai the victim raised an alarm which attracted Aziz Hussain and Ijaz Hussain the abandoned P.Ws. On their arrival Ishfaq accused picking up his Chaddar, ran away from the spot. The incident was narrated to Kalu Khan her father and in his company Mst. Saffo Mai went to the Police Station Bhakkar Saddar where a report was lodged the same day at 3-00 p.m. Direct account about the offence was furnished by Mst. Saffo Mai P.W. Only who according to the prosecution was 13/14 years old at the time of delict. The two witnesses Aziz Hussain and Ijaz Hussain were abandoned by the prosecution for the reason that they were won over by the defence.
3. Lady Doctor Mrs. Arjamand Bano Rafiq (P.W.5) who examined Mst. Saffo Mai on the next day of the crime observed that the victim was a girl of moderately short built. No marks of violence were found on the body including the private parts. Her breasts were fully developed. Two vaginal swabs were taken for detection of semen and sent to the Chemical Examiner whose report was positive.
The Doctor opined that she could not give the correct age of the victim for which purpose she advised X-Ray to determine it after the ossification of bones was carried out. It was also observed by the Doctor that the victim had undergone few acts of sexual intercourse prior to the examination and that she was not virgin, as the hymen showed old healed lacerations with soft fibroces. As the whole case of the prosecution gyrates round the version of Mst. Saffo Mai the victim alone, on carefully vetting the same, one can easily brush aside the allegation of Zina-bil--Jabr, in that not a simple scratch as a result of violence was found on her body. Her clothes too were found in order and not torn, even the string of the trousers was intact. In case as it is alleged the victim was forcibly carried upto 20 Karams and during all this process she A was resisting, absence of marks of violence on the body or the clothes is highly unnatural. Delay in getting the victim examined by the Lady Doctor has not been plausibly explained. According to Mst. Saffo Mai and the Investigation Officer; the Lady Doctor was not available in the Hospital on 21-7-1983 and, therefore, the medical examination was done on 22-7-1983, whereas according to Kalu Khan father of the victim who was accompanying her the victim was not taken to the Hospital on 21-7-1983 and for the first time she in his company went to the Hospital on the next day of the occurrence. Mst. Saffo Mai had blown hot and cold in the same breath. At one place she stated that she did not know the accused or his name, whereas at another place she said that she knew him since before.
4. The learned counsel representing the State argued that Mst. Saffo Mai was not pubert at the time of zinc-bil-jabr. There is no evidence to this effect. On the other hand, according to the Lady Doctor she had fully developed breasts. It was .The prosecution to have proved that the victim was not pubert. The over-all picture that emerges from the evidence is that Mst. Saffo Mai, a girl of easy virtues, was of her own free will having sexual intercourse and when they were surprised by the two abandoned witnesses, on having been detected a case of forcible sexual intercourse was made out by her. In case of wilful intercourse Mst. Saffo Mai would be equally guilty of Zina and, therefore, her statement, will lose all credibility of an independent statement as it will be the version given by an accomplice.
5. For the reasons outlined hereinbefore, the case of the prosecution bristles with reasonable doubt.
Extending the benefit of the same to the accused appellant, the appeal is accepted, the conviction and sentence awarded are set aside. Ishfaq appellant shall be released forthwith if not required in any other matter.