Muftakhiruddin, J.-Sarfraz A.I son of Habib Khan, Muhammad Saleem son of Abdul Hamid and Shaukat A.I alias Shauki son of Muhammad Rafique have challenged the conviction recorded against them by the Additional Sessions Judge Khanewal on 12-2-1986 whereby they have been convicted under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under Section 377 PPC. They have been sentenced as under :-
1. Under section 12 of the Ordinance -to undergo R.I. for five years and whipping numbering ten stripes each.
2. Under section 377 P.P.C. - to undergo R. I. for five years each and to pay a fine of Rs. 200' I each or in default of payment of fine to further undergo R. I. For six months.
Both the sentences have been ordered to run concurrently.
2. One Abdur Rehman alias Muhammad Akram son of Fazal A.I came to the Police Station Khanewal District Multan on 30-3-1984 at about 4.15 p.m. And stated that he had gone to see his brother Muhammad Aslam a fruit contractor at the Railway Station on 29-3-1984 at about 11.00 p.m. He was given Rs. 500 for purchase of fruit from the market and to bring the same to the Railway Station. Sarfraz and Saleem were also with him. He purchased the fruit, took the same to the Railway Station and thereafter while he was going back towards his house situated in Colony No 3, Khanewal. Sarfraz and Saleem also started with him. On the way to Colony No. 3 Shaukat A.I also met them and told that a 'kuth puttli' show was being staged near grave-yard Barewala and they should go to see the same. All the three persons took Abdur Rehman to the grave-yard Barewala where they asked him to allow them to commit carnal intercourse but he refused. All the three persons caught hold of him, Sarfraz removed his shalwar, Shoukat put his hand on his mouth.
Muhammad Saleem accused brought out his knife and he started threatening the complainant that if he will raise noise he will be killed. All the three accused persons then subjected complainant Abdur Rehman to carnal intercourse in the area of the grave-yard. Since all the three accused persons were armed with knives, he did not raise any alarm. PW 5 Muhammad Yousaf son of Fazal A.I Shah and PW 6 A.I Muhammad son of Phool Shah his relatives were attracted to the place of occurrence. These PWs had witnessed the occurrence and had tried to catch hold of the accused but they made good their escape from the spot. Abdur Rehman, the victim, was taken to his house by these two persons Muhammad Yousaf and A.I Muhammad. On the next day (30-3-1984) the complainant got himself medically examined by Dr. Asghar A.I PW 1 and lodged the report. He also submitted the medical report. The F.I.R. Was formally registered by Manzoor A.I Foot Constable P.W.
7 and the case was Investigated by A. S. I. Abdul Khaliq P. W.
8. During the investigation the knife was recovered and the recoveries were witnessed by PW 2 Chand Khan and Azeem Hussain Shah (PW 3). The charges were denied by the accuse d/appellants.
3. At the trial the prosecution examined 8 witnesses. PW 1 Dr. Asghar A.I in his statement before the Court stated that he had examined Abdur Rehman (complainant) aged about 17 years on 30-3- 1984 at about 11:00 a.m. He was brought by Nazir Ahmad constable No. 931 (not produced). He has observed in his Medico Legal Report Ex. PA/1 as under:- "Anus is bruised all around, there are small laceration under the bruises. Examination is painful, anus was not patulous. Two swa bs are taken from Anus and rectum, dried and sealed and handed over to Police Constable Nazir Ahmad No. 931 shalwar scaled and handed ever to the said constable."
The anal swa bs taken from the alleged victim were found not stained with semen while the shalwar was stained with semen. This witness has after perusing the report of the Chemical Examiner Punjab Lahore (Ex. PA/2) expressed the opinion that the sodomy was committed with the victim.
Sariraz and Saleem, the accused, were also examined by Dr. A>ghar A.I on 8-4-1984 and were found capable for performing the sexual intercourse as no abnormality was found in their examination. However, he admitted in the cross-examination that it was not possible to locate about the semen as to which person it belonged to. It was also admitted that at the age of 17 years, a person may discharge his semen. PW 5 Muhammad Yousaf and PW 6 A.I Muhammad when appeared in the Court did not corroborate the statement of Abdur Rehman (victim). These two persons did not say even that they had made inquires about the incident from the complainant, though the complainant in his statement had introduced the names of two persons and according to him these two persons were the eye witnesses of the incident, The learned counsel for the appellant has rightly contended before us that this conduct of these two persons appears very strange and un-natural. The fact however, remains that the prosecution has received no corroboration from Muhammad Yousaf and A.I Muhammad. PW 2 Chand Khan PW 3 Azeem Hussain Shah the alleged witnesses of the recovery also did not say that the article shown to have been recovered in the premises was actually so recovered These persons have been declared hostile. PW 8 Abdul Khaliq A.S.I. In his deposition before the court has candidly stated that except the medical certificate the complainant had not produced any thing before him and no police officer had accompanied complainant Abdur Rehman for his medical examination. He had himself got himself medically examined and had produced the medical certificate. In the face of this statement of fact it is not understandable as to when the shalwar found stained with semen was taken into possession by the police as no ' inventary to that effect has been found on record. None has been produced in court to establish that any shalwar at all was produced by Abdur Rehman and who has kept it in safe custody before it was sent to the Chemical Examiner.
4. We are, therefore, inclined to agree with the learned counsel for the appellant that there is no evidence on record that shalwar sent to the Chemical Examiner was in fact the one worn by the complainant at the time of the commission of offence or that it was secured by the police and later sent to the Chemical Examiner as Nazir Ahmad Foot-constable has not been examined by the prosecution and no recovery memo was prepared. In this connection the judgment of this Court reported in PLJ 1984-FSC Page 211 (Cr. A. No. 69/1 of 1983 Karim Mux... v. The State can be safely relied upon. The medical evidence in this case does not establish the case. Had the complainant been subjected te sexual intercourse forcibly by three young persons of the age of the appellant extensive damage must have been caused to Abdur Rehman. Hafiz Ghulam Bari Advocate, the learned counsel for the State, therefore, frankly admitted before us that the statement of the victim does not inspire confidence and it would not be safe to maintain the conviction.
5. In view of the above the appeal has to be accepted. We accordingly set aside the conviction and sentences and acquit the appellants of all the charges. We, accordingly, order that the appellants shall be released forthwith if not required in any other case.