' FIDA MUHAMMAD KHAN, J.--- Vide his judgment and order, dated 18-12-1989 the learned Additional Sessions Judge, Faisalabad convicted Sarja son of Jan Muhammad, resident of Chak No,606/G.B., Tehsil Samundari, District Faisalabad under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to five years' R.I. And whipping numbering ten stripes.
Sarja has preferred this appeal against the said judgment and order.
2. The trial started on the complaint lodged by Mst. Amiran Bibi Exh.PA. Before Rabnawaz S.I. P.W.6 wherein she stated that on 1-6-1986 her husband had gone to village Mouchikewan and she was sitting in her house on a cot inside the room, Sarja son of Jan Muhammad came to her house and, on finding out that her husband was not present in the house, immediately closed the door and caught hold of her hair and dragging her on the ground forcibly started Zina with her. She tried to resist but he threatened to kill her. However, her hue and cry attracted Muhammad and Hussain and on seeing them Sarja fled away. She told Muhammad and Hussain what had happened. In the evening her husband came and she informed him. On 2-6-1986 she went alongwith her husband for medical examination to Civil Hospital, Faisalabad. Then on the following day i,e. On 3-6-1986 her complaint was incorporated into F.I.R. Exh.PA./1. On 7-6-1986 Sarja was arrested. After completion of the investigation the appellant was challaned to face the trial.
3. At the trial prosecution examined six witnesses. P.W.1 is Tasawar Hussain who on 3-6-1986 recorded the formal F.I.R. Exh.PA./1 on the basis of complaint Exh.PA. P.W.2 is Lady Dr. MRs, Khalida Butt, S.W.M.O., D.H.Q. Hospital, Faisalabad. She deposed that she examined Mst. Amiran Bibi, wife of Abdullah on 2-6-1986 and observed as follows:-- "Vagine admitted two fingeRs, Hymen was torn.
' Tears were old.
' She was four months' pregnant."
' She also took two vaginal swa bs and sent the same to the Office of Chemical Examiner, Lahore and finding the report of the Chemical Examiner Exh.P.C. Positive opined that she was subjected to sexual intercourse. P.W.3 Mst. Amiran is complainant who reiterated her statement as mentioned above. P.W.4 is Hussain who on hearing the alarm rushed towards the house of Mst. Amiran alongwith Muhammad and when they reached in front of the door of the house they saw Sarja scaling over the wall in a naked condition. On their enquiry Mst. Amiran informed them of the incident as stated above. P.W.5 is Dr. Mumtaz Ahmad Bajwa who on 7-6-1986 medically examined Sarja and found him fit to perform sexual intercourse. P.W.6 is Rab Nawaz, S.I. Who arrested the appellant and investigated the case.
4. Sarja in his statement under section 342, Cr.P.C. Denied the allegation and pleaded innocent. He took the plea that the P.Ws. Had deposed against him due to enmity. He also made statement under section 340(2), Cr.P.C. And deposed that he had a quarrel with Abdullah, husband of Mst.
Amiran whose land was adjacent to that of his Square No,2, while the land of Muhammad and Hussain P.Ws. Was also situated towards the back side of his square and Abdullah wanted to sell canal water to Muhammad and Hussain. He deposed that he had given an application to Tehsildar, Samundari. Mst. Amiran, Muhammad and Hussain were real cousin inter se, they had implicated him in the case on account of the said water dispute. He, however, did not produce any defence witness.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellant submitted that there was inordinate delay in lodging the F.I.R. He further submitted that Mst. Amiran was medically examined on 2-6-1986 i,e. On the second day after the alleged occurrence while she had remained with her husband during the night and she was also found pregnant for four months. The learned counsel submitted that the appellant was implicated in the case due to enmity and the P.Ws. Were inter see related.
6. We have thoroughly examined these contentions. So far as the submission regarding the relationship of the P.Ws. Is concerned that is without any force because suggestions were put to P.W.3 as well as P.W.4 but were denied. However, we have found that the prosecution case hinges upon the testimony of Mst. Amiran and there is no other ocular evidence of the commission of Zina except her solitary statement which though has found corroboration from the 'medico-legal report but the fact that her husband had returned in the evening and she was medically examined by the lady doctor on the following day makes the report doubtful. Out of the two eye-witnesses who allegedly saw the occurrence only Hussain was produced who in his statement did not support the fact of having seen the commission of the offence. However, he stated that he saw the appellant running away by scaling over the wall. The F.I.R. Was lodged after the delay of about 54 hours which should further put the Court on guard to accept the versions with care and caution. The police station is at a distance of 4/5 squares from the house and her husband had duly returned in the evening and in that situation prompt action should have been taken to report the matter to the police. P.W.3 was suggested and she replied to the suggestion that there was no exceptional reasons for not going to the police station for lodging the report. After arrival of her husband there was no reasonable excuse to delay the report to police. Also the possibility of enmity in the circumstances cannot be ruled out altogether.
7. Consequently for the reasons stated above we find that the prosecution has not established its case against the appellant beyond any reasonable doubt. Therefore, we extend the benefit of doubt to the appellant and absolve him of the charge. We set aside the conviction and sentences of the appellant and allow his appeal. He is to be released forthwith if not required in any other case.