1. SHAFIUR RAHMAN, J.-- Amir Muhammad, a convict under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter referred to as the Ordinance), has preferred as of right this appeal under Article 203-F (2-A) (a) of the Constitution as the sentence of fourteen years'
2. R.I. Awarded to him was enhanced by the Federal Shariat Court on appeal to life imprisonment by its judgment, dated 11th of March, 1984.
3. The prosecution case was that Mst. Parveen Akhtar aged about thirteen years resided in Railway Quarters, Kassowal, District Sahiwal, along with her father Soofi Ghulam Muhammad (P.W.7) who was a gatekeeper of the Railway crossing. She was studying in sixth Class in the local school. The appellant aged about forty years was also employed in the Railway as a Patrolman and resided in the adjacent quarter. He had a family of his own and children. On the 25th of March, 1979 while Mst.
4. Parveen Akhtar was going to attend the school the appellant allegedly induced her to come out after the school was over to wait for him in the fields under a tree and that he would take her along with him, marry her and give her clothes and money all that she needed. She did accordingly. She was taken to the adjacent wheat fields and the appellant committed Zina on her and threatened her not to disclose it to anyone. They remained hidden in the wheat filed till evening when the appellant left the field and her father accompanied by two persons and the police arrived there.
5. She was taken to the police station where she copied what the S.I. Had written and on that the case was registered. The medical examination of Mst. Parveen Akhtar was conducted the next day and the lady doctor Shamim Akhtar (P.W. 3) reported as follows:- "No marks of violence on any part of the body. Hymen torn. No fresh tear. Not tender vagina. Admit two fingers easily. Two vaginal swa bs taken and handed over to the police for Chemical Examiner, Punjab, Lahore."
6. The trial Court held that the offence under section 10 of the Ordinance was not proved but the offence under section 11 was fully proved. The trial Court convicted the appellant under section 11 of the Ordinance and sentenced him to rigorous imprisonment for a period of fourteen years, ten stripes and a fine of rupees one thousand or in default to undergo one year's R.I.
7. On appeal, the Federal Shariat Court maintained the conviction under section 11 but suo moto enhanced the sentence for it as prescribed under the law to life imprisonment maintaining the sentence of stripes and fine.
8. Mr. M. Bilal, Advocate, the learned counsel for the appellant, has taken us through the evidence to point out that it is highly discrepant, at places contradictory and quite uninspiring to prove any offence against the appellant. He has particularly drawn our attention to the fact that there does not appear to be a proper First Information Report at all and the first version of the occurrence is materially discrepant with what the two Courts found established disallowing the benefit of the infirmities of the prosecution case to the appellant in contravention of the principles well- recognised for the safe administration of criminal justice.
9. The Federal Shariat Court held that the written report lodged by Mst. Parveen Akhtar was not the First Information Report. Instead, an oral statement not recorded was taken to be the First Information Report. This conclusion appears from the following finding recorded by the Federal Shariat Court-- "In the circumstances of this case it is clear that the statement of Mst. Parveen Akhtar made before the police cannot be taken as First Information Report of the case. The F.I.R. Of the offence of her abduction had already been made by Ghulam Muhammad before the police who had expressed his suspicion about Amir Muhammad against whom action was taken immediately by the police."
10. Ghulam Muhammad (P.W. 7) stated that he went to the police station and orally informed the A.S.I.
11. And the appellant was contacted who led to the recovery of Mst. Parveen Akhtar from the wheat field. Muhammad Akram (P.W.4), on the other hand, stated that he accompanied the complainant's father to the police station where Amir accused was already present. The S.I. Sadiq Hussain (P.W. 6) does not mention any of these things.
12. The medical examination by Dr. Shamim Akhtar showed that there was no fresh tear of the hymen, no marks of violence and that rape could have been committed at any time prior to fifteen days.
13. Besides, she was already used to sexual intercourse.
14. The recovery of the girl from wheat field which happened to be adjacent to their quarter or in any case, not far from it was while she was alone there and the appellant was not present was not by itself', incriminating. According to Mst. Parveen Akhtar, she was there in the field from 2 p.m. Till after sunset.
15. All these factors taken together, cast a serious doubt about the prosecution case itself. The prosecution case is not proved. The appellant was entitled to acquittal. We accept the appeal and set aside the judgment of the conviction. The appellant shall be released forthwith unless his detention is required in some other case.