' KAMAL MUSTAFA ROKTTARY, J.-- Niaz Ahmad son of Rahim Bakhsh, resident of District Multan, was convicted, on 11-4-1988, by Mr. Akhtar Mehmood Khan, Additional Sessions Judge, Multan under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to undergo rigorous imprisonment for ten years with whipping numbering thirty stripes for committing Zina-bil-Jabr with Mst. Shahida. The convict has challenged his conviction and sentences by this appeal.
2. The prosecution case disclosed in the first information report was that on 22-7-1985, Muhammad Alam, first informant, with his son, Allah Ditta, had gone to attend a marriage ceremony at Faisalabad. He lived in Mohallah Totalpura, Multan City. The wife of his son, Mst. Naziran with her daughter, Mst. Shahida victim were present in her house in Mohallah Totalpura. At about 12 noon, Mst. Shahida told her mother, Mst. Naziran, that a short time ago when she was playing in the street one man with a black beard took her away to the nearby mosque on the pretext of giving her eight Annas and after bolting the door from inside he committed Zina-bil-Jabr with her in the mosque.
Mst. Naziran informed Muhammad Ramzan and Muhammad Shafi about it who searched for the accused but could not trace. However, they found blood stains on the mat in the mosque. Since the first informant and his son were away from their house and accused also could not be traced no information of the incident was given to the police. The first informant returned to his house, on 24- 7-1985. The Shalwar of Mst. Shahida was blood-stained but her mother washed it by mistake and people of the Mohallah also washed the mat in the mosque. The first informant and his son were told about the occurrence by Mst. Naziran and Mst. Shahida when they returned home after 3/4 days who also searched for the accused. On 7-8-1985, at about 11-00 a.m. Mst. Shahida left the house and went into the street when the same person who had committed Zina-bil-Jabr with her again visited the Mohallah and wanted to take Mst. Shahida in the mosque for the same purpose on the pretext of giving her eight Annas. But this time Mst. Shahida raised alarm which attracted Muhammad Alam, Allah Ditta and Liaquat to the spot. The appellant tried to escape but was apprehended. He admitted the occurrence of 22-7-1985 and begged forgiveness but he was produced before the police. Formal F.I.R. Was registered on same day. After investigation he was challenged in Court.
3. At the trial, prosecution examined seven witnesses in all. Mst. Shahida (P.W.2), aged 9/10 years, deposed that the appellant enticed her away to the mosque where he committed Zina-bil-Jabr with her and also tried to do the same next time on pretext of paying her eight Annas. Muhammad Alam (P.W.1), first informant, as well as Mohallandars, Muhammad Shafi (P.W.3) and Liaquat (P.W.4), proved extra-judicial confession of the appellant made before them. Mst. Naziran (P.W.5), mother of the victim deposed about the earlier occurrence and stated that she had by mistake washed blood-stained Shalwar of Mst. Shahida. Nazar Hussain (P.W.6), A.S.I., had registered the first information report and investigated the case. Lady Dr. Rashida Soharwardy (P.W.7) deposed that she medically examined Mst. Shahida, aged about 9 years, on 7-8-1985, but found no mark of injury on any part of her body including her private parts. Her hymen was old torn. Fimbriated edges were seen on examination. Her vagina opening admitted one fear easily. She took two swa bs from the outer surface of her vagina. She reserved her opinion until the report of Chemical Examiner was received. On seeing the negative report of Chemical Examiner she was of the opinion that Mst. Shahida had not been subjected to any sexual intercourse. To a Court question she stated that a girl of 9 years of age does not ordinarily admit one finger, easily in her vaginal orifice and the lady doctor was of the opinion that Mst Shahida was certainly subjected to sexual intercourse at least once without which she would not have admitted one finger easily in her vaginal orifice.
4. The appellant did not plead guilty to the charges. He denied allegations of having committed Zina-bil-Jabr with Mst. Shahida, further denied to have attempted to entice her away and also denied that he ever made extra judicial confessiot before any prosecution witness. When examined under section 342, Cr.P.C. In reply to the question, if he was caught and confessed before the Mohallandars to have committed rape with Mst. Shahida, he stated as follows:- "It. Is incorrect. In 1985, I was sitting in a mosque at about 9-30 a.m., near Chowk Shah Abbas, Multan. Liaquat P.W. Came there and caught hold of me and took me to the Dera of Munshi in Mohallah Totalpura. There at the Dera, some 40/50 persons were present whom I did not know nor did I know 'Liaquat who brought me there. The said persons beat me thoroughly, and one of them brandished a knife, where after he put his foot on 'my throat and beat me with shoe. After some time the police arrived there and then they all took me to the police station where before the D.S.P., I continued denying the allegation. During this course, I did not see Mst. Shahida anywhere nor did I know as to what did she state. On that day, I did not have any beard. I have got my photographs of that period."
' He appeared as his own witness and made a statement on oath denying the allegations against him. He also placed on.Record his two photographs.
5. The learned counsel for the appellant argued before us that no reliance could be placed on the statement of Mst. Shahida being a child witness of the age of 9 years, particularly when the trial Court was of the opinion that she could not give any rational answer at the time of her examination in Court; that she did not identify the appellant in Court; that the police Sub-Inspector had memorised her statement and had shown the appellant to her and that Mst. Shahida gave different story, of having been used through rectum which version was contradicted by the medical evidence. It was submitted that the evidence of extrajudicial confession was not admissible having been obtained after giving beating to the appellant and= also because the medical evidence did not support the allegations of Zina-bil-Jabr having been committed on Mst.
Shahida.
6. We were taken through the evidence in this case and have perused it Mst. Shahida alone deposed to have been taken away from the street inside the mosque by the appellant where she was subjected to Zina-bil-Jabr by him. The matter was not reported to the police. Mst. Shahida, on arrival in her house, told about this occurrence to her mother Mst. Naziran, P.W., who brought this to the notice of Mohallandars but no report was lodged about the occurrence. Mst. Naziran washed blood-stains on Shalwar of Mst. Shahida and people also washed blood-stains on the mat on which the appellant allegedly committed Zina-bil-Jabr with mstM Shahida. The solitary statement of Mst. Shahida cannot form basis for upholding conviction of the appellant for more than one reason. She was a child witness not capable of understanding; she could not identify the appellant in Court; the appellant was stated to be having heard when he raped her but at the time of second incident after about a fortnight he did not have any beard. It is in evidence that police Sub- Inspector had shown the appellant to her and had tutored her. Although the Court tried to make her understand she insisted to state that the appellant had used her from the rectum and not through the vagina. The Chemical Examiner had given a negative report. The lady doctor did not give any opinion when she examined her if she was at all subjected to Zina-bil-Jabr. It was only on the Court question that the lady doctor stated that Mst. Shahida was subjected to sexual intercourse because her vagina adtnitted one finger which was not possible keeping in view age of the victim unless intercourse had been committed with her Mst. Shahida stated that one Julaha had also committed intercourse with her. After perusing her testimony we are unable to reach the conclusion that the appellant had committed sexual intercourse with her.
7. The medical evidence did not support the allegation that the appellant had subjected Mst.
Shahida to sexual intercourse. The lady doctor, who medically examined Mst. Shahida, did not form any opinion that intercourse had been committed with her. The report of the Chemical Examiner, Exh.P.E., disclosed that the swa bs taken from her vagina were not semen stained. The lady doctor did not find any injury on rectum of Mst. Shahida who persistently deposed in Court that the appellant had committed sodomy with her.
8. The evidence of extra-judicial confession in the testimony of Muhammad Alam, Muhammad Shafi and Liaquat is not worthy of reliance. It cannot be relied upon because the alleged confession from the appellant was stated to have been obtained after giving him beating. All the three aforementioned witnesses made improvements at the trial and their testimony was contradictory on material points. Before the police none of them had stated that the appellant made extrajudicial confession. According to Muhammad Alam the appellant was standing at a distance of 12 Karams from Mst. Shahida when he with his son Allah Ditta and Liaquat, P.W., reached the lane and on seeing them the appellant started running who was chased by Allah Ditta and Liaquat.
Allah Ditta son of Muhammad Alam, P.W., was not examined in Court. While contradicting Muhammad Alam, Liaquat stated that he and Allah Ditta caught hold of the appellant where he was standing. Muhammad Alam deposed that the appellant had been Imam of their mosque and he as well as others had been saying prayers behind him but Liaquat stated that he had never seen the appellant until the day he was apprehended. Muhammad Alam deposed that the appellant had a big black beard when apprehended but according to the remaining two witnesses he did not have the beard. The prosecution witnesses are not uniform about the apprehension of the appellant at the spot. According to Muhammad Alam he was taken to the police station from the Dera of Munshi and brought back to the spot by the Thanedar but Muhammad Shafi, P.W., stated that the appellant remained in the Hawalat and was not brought by the police to the spot.
9. The prosecu'on evidence on record does not connect the appellant with the offence alleged to have been committed by him. He was not seen committing sexual intercourse nor the prosecution examined any evidence of the occurrence in which the appellant committed sexual intercourse with her. No F.I.R. Was registered with the police about that occurrence. He is stated to be keeping long beard and was previously known to the first informant Muhammad Alam, P.W., as Imam of the mosque, yet no F.I.R. Was registered with the police till after a fortnight when another attempt is stated to have been made by the appellant to molest Mst. Shahida. The prosecution failed to produce medical evidence to show that the appellant was capable of performing sexual intercourse. The Prosecutor conveniently gave up Dr. Tahir Feroze Khan as unnecessary. The medical evidence did not support the prosecution version and the report of the Chemical Examiner has belied it. The victim contradicted the prosecution evidence when she stated that the appellant had committed sodomy with her. The evidence of extra-judicial confession is not reliable. We find that prosecution failed to establish guilt of the appellant beyond reasonable doubt and he is entitled to acquittal.
' For the aforementioned reasons we allow appeal, set aside the conviction and sentences of the appellant and acquit him. By a short order we had directed his release from prison unless he was required in some other case.