1. ' MIR HAZAR KHAN KHOSO, .J--Criminal Appeal No,407/L of 1992, Criminal Suo Motu No,89/L of 1992 and Criminal Appeal No,107/L of 1992 are directed against the judgment dated 29-10-1992. Hence we intend to dispose of them by this one judgment.
2. It is case of the prosecution that on 21-9-1989 appellants Zulfiqar Ahmad alias Bhutto son of Sultan and Nasarullah son of Muhammad Sharif committed rape upon Mst. Uzma Nisar. F.I.R. No,145 was registered at Police Station Burewala Saddar on the same day. Mst. Uzma Nisar was examined by W.M.O. Lady Dr. Samina Zubair on 22-9-1989 whose examination-in-chief in respect of the same is as under:-- "On 22-9-1989 I examined medically Uzma Nisar daughter of Nisar Ahmad aged about 13 years, Malik by caste, resident of Chak No,455/EB, Police Station Saddar Burewala. My observations were as under:--
(1) There was no mark of violence of injury present on any part of the body. She was well-oriented in time and space.
(2) She had not taken the bath and had not changed her clothes. She was menstruating at the time of examination. Some bloody discharge was found on the underline Shalwar which was enmarked initiated, sealed and handed over to the police for detection of semen etc. Per Vaginal examination: ' Vulva vagina was healthy, pubic hair present; but not metted together. Hymen was torn. Vagina admitted two fingers with difficulty. She was menstruating and bleeding coming out from vagina.
2. Uterous was nulliparous size.
3. ' Two vaginal swa bs taken in a vial, sealed, signed and handed over to the police for detection of semen etc. From Chemical Examiner, Multan.
4. ' On the basis of the above observations and best of my medico-legal knowledge I was of the opinion that lady examined was not virgin. About rape it could be decided on the receipt of the report of the Chemical Examiner.
5. ' According to the report of the Chemical Examiner Exh.P.E. The above articles are not stained with semen but stained with blood cells.
6. ' According to the report of the Chemical Examiner the above articles, swabs and Shalwar are not stained with semen but stained with blood cells. So in this case she might be used to sexual intercourse. I have this report on the application moved on behalf of Wali Muhammad S.I. Before me which is Exh.P.F. And my report on that is Exh.P.F./1 which is in my hand, correct and signed by me."
7. ' The appellant was examined by Dr. Arshad Parvez who opined that he was potent for the purpose of sexual intercourse. However, after usual investigation the appellants alongwith acquitted co- accused Mst. Musarat Nazir were challaned before the Court of learned Additional Sessions Judge, Burewala, where the appellants and their acquitted co-accused did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined:- ' P.W.1 Nazir Ahmad, Constable formal witness.
8. ' P.W.2 Dr. Arshad Parvez, who examined the two appellants. P.W3 Abdul Majid, H.C. Formal witness.
9. ' P.W.4 Abdul Khaliq, formal witness.
10. ' P.W.5 Lady Doctor Samina Zubair, W.M.O. Who examined Mst. Uzma Nisar.
11. ' P.W.6 Ghulam Muhammad, A.S.I.
12. ' P.W.7 Muhammad Akram, eye-witness.
13. ' P.W.8 Muhammad Amin, eye-witness.
14. ' P.W.9 Mst. Uzma Nisar, the victim.
15. ' P.W.10 Mehr Wali Muhammad, S.I., the Investigating Officer.
16. ' In their statements recorded under sections 342, Cr.P.C. And 340, Cr.P.C. The appellants denied the allegation. So was the stand of their acquitted co-accused Mst. Musarat Nazir. No witness was examined in defence. However, the learned Additional Sessions Judge acquitted Mst. Musarat Nazir but convicted the appellants for offence under section 10(3) of the Ordinance and sentenced them for the same as under:--
(i) Zulfiqar AliUnder section 10(3) of the Ordinance R.I. for 10 years and ten stripes.
(ii) NasarullahUnder section 10(3) read with section109, P.P.C.R.I. for five years and ten stripes.
17. ' The appellants have challenged their conviction and sentence before this Court in Criminal Appeal No,407/L of 1992. Mst. Uzma Nisar has challenged acquittal of Mst. Musarat Nazir in Criminal Revision No,107/L of 1992. The Court has issued show-cause notice to the appellants for enhancement of the sentences in Criminal Suo Motu No,89/L of 1992.
3. Sheikh Zia Ullah, Advocate, appeared for the appellants, Mr. Ali Ahmad Malik, Advocate, for the petitioner and Rao Khalil Ahmad, Advocate for the State.
4. The material evidence involving the appellant is oral evidence of P.W.7 Muhammad Akram, P.W.8 Muhammad Amin and P.W.9 Mst. Uzma Nisar. Evidence of these witnesses was found to be trustworthy and sufficient for conviction of the appellants. It may be observed that the learned Additional Sessions Judge did not properly assess the evidence of Woman Medical Officer Dr. Samina Zubair who examined Mst. Uzma Nisar on 22-9-1989. In unequivocal words she has said that no recent sexual intercourse was committed with the victim. Besides, the Chemical Examiner's reports reflect that the swa bs and Shalwar of the victim were stained with blood but not with semen. It is noteworthy that at the time of examination she was menstruating, hence the blood stains may be that of the menstruation. In her evidence the Medical Officer has, further said that victim's hymen was torn and her vagina admitted two fingers with difficulty. She, however, did not give positive evidence that the victim was subjected to sexual intercourse, but in ambiguous words said that she might had been used to sexual intercourse. It seems that the Medical Officer was influenced by the tear in the hymen without realising that besides sexual intercourse there are many other factors which may also cause tears in hymen. Dr. Modi in his book "Modi's Medical Jurisprudence and Toxicology" has observed:-- "Besides the act of coitus, the hymen may be ruptured by:
(1) An accident e.g. At tall astride on a projecting substance, fence, or while playing at see saw.
(2) Masturbation, especially if practised with some large foreign body. But the hymen is not destroyed in most cases, as the manipulation is generally limited to parts anterior to the hymen. In such cases the nymphae are elongated and the clitoris is enlarged by the continued practice of masturbation. The hymen is, however, ruptured by the forcible introduction of a stick or finger constituting indecent assault on small girls.
(3) Introduction of instruments by medical practitioners during examination or a surgical operation.
(4) The insertion of sanitary tampons, particularly if the hymen is a thin elastic membrane.
(5) A foreign body, such as a sola pith, introduced purposely with a view to rendering very young girls fit for sexual intercourse (aptoe viris). This is sometimes resorted to by prostitutes. The usual procedure is to insert a piece of sola pith as large as the vagina can contain and then to make the unfortunate girl sit in a tub of water. The pith acts as a sponge tent and dilates the vagina. The size of the pith is increased gradually for further dilation. Thus, the hymen is often lacerated.
(6) Ulceration from diphtheria, nom, or other diseases. In such cases the whole hymen is destroyed leaving a scar only."
18. In such view of the facts the medical evidence does not support the oral evidence of the abovesaid witnesses at all but on the contrary belies it totally. It is thus indeed highly risky to keep reliance on witnesses' oral evidence and maintain conviction of the two appellants. In result of our abovesaid observation, we accept the appeal, set aside the conviction and sentences of the appellants recorded on 29-10-1992 by the learned Additional Sessions Judge. They \are acquitted of the charge. Appellant Zulfiqar Ahmad alias Bhutto is in custody. He be set at liberty forthwith if not required in any other case.
19. ' Appellant Nasraullah is on bail. He is discharged from the obligation of the bail bonds.
20. ' As the appeal has been accepted, the Revision Petition No,107/L of 1992 and Criminal Suo Motu No,89/L of 1992 have become infructuous which are disposed of accordingly.