' This Criminal Appeal arises from the judgment of learned Judicial Magistrate section 30, Bahawalnagar, whereby he on 27-10-1981 convicted Muhammad Ismail appellant under section 376, P.P.C. And sentenced him to 7 years R.I. And 30 lashes.
2. The occurrence took place on 10-8-1976 at about 10/11 a.m. In the field of Khuda Bakhsh situate in Dhok Said Muhammad at a distance of 8 miles from Police Station Minchanabad. The FIR was lodged by Mst. Niaz Bibi P.W. On 12-8-1976 and recorded by Fais Muhammad S.I., P.W.
2. The occurrence was seen by Muhammad Ramzan and Allah Ditta P.Ws. Mentioned in the F.I.R.
After investigation, the appellant was challaned to face trial. He denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 4 witnesses. While giving the ocular account of the occurrence, Mst. Niaz Bibi P.W.1 stated that at the eventful time, she was cutting grass in the field of Khuda Bakhsh, when Muhammad Ismail appellant came there, caught hold of her, removed her shalwar and committed rape with her. The alarm raised by her attracted Muhammad Ramzan and Allah Ditta to the spot. On seeing them, the appellant made good his escape. Mst. Zohra Manzoor, W.M.O., P.W. 3 had medically examined the prosecutrix and found it a fresh case of sexual intercourse. Swabs were taken from the vagina of the prosecutrix and were sent to the Chemical Examiner. The report was positive. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised the plea of false implication. In defence, he produced Muhammad Ramzan and Allah Ditta P.Ws., who refused to support the prosecution case.
5. On the conclusion of the trial, the learned trial Court convicted and sentenced the appellant as stated above.
6. Learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubts in that there is a delay of two days in lodging the F.I.R.; that the prosecutrix was medically examined after 70 hours of the occurrence; that there is no independent corroboration of her statement, that the eye-witnesses mentioned in the F.I.R., appearing as defence witnesses have belied the prosecution case. Conversely, the learned counsel for the State supported the judgment of the trial Court. He was/is of the view that the delay in the F.I.R. Has reasonably been explained; that the prosecutrix has no enmity to involve the appellant falsely, that the medical evidence lends support to the prosecution version and that the conviction can be sustained on the solitary statement of the prosecutrix.
7. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the appellant for the reasons that Allah Ditta and Muhammad Ramzan, the eye-witnesses mentioned in the F.I.R., although produced as defence witnesses are still to be treated as prosecution witnesses for all intends and purposes. The prosecution did not produce them. The accused/appellant took the risk of producing them in his defence. They have categorically stated that the appellant was falsely involved in this case. In cross-examination nothing damaging their veracity could be elicited. There were 3 witnesses of the occurrence. One has been produced by the prosecution and two have appeared in defence. No doubt, from the medical evidence, it appears that Mst. Niaz Bibi was subjected to rape, but the real question for consideration and determination is as to whether or not the appellant had committed rape with her.
' There is a solitary statement of the prosecutrix on the question of the identity of the culprit, which in accordance with the rules for the sale administration of justice in criminal cases did require corroboration. Instead of corroboration of her statement, I find that there is weighty contradiction coming from the mouth of the eye-witnesses named in the F.I.R. That being the position, I feel that it would be highly unsafe to sustain conviction of the appellant recorded by the trial Court.
' Pursuant to the above discussion, giving him the benefit of doubt, the appellant is acquitted of the charge. So, the appeal is accepted. The appellant is on bail and stands discharged of the bail bonds.